Preamble

The House met at half-past Two o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

PRIVATE BUSINESS

CITY OF LONDON (VARIOUS POWERS) BILL [Lords]

NORTH WEST WATER AUTHORITY BILL [Lords]

As amended, considered; to be read the Third time.

BRITISH RAILWAYS ORDER CONFIRMATION

Mr. Bruce Millan presented a Bill to confirm a Provisional Order under Section 7 of the Private Legislation Procedure (Scotland) Act 1936, relating to British Railways; and the same was read the First time; and ordered to be considered upon Tuesday next, and to be printed. [Bill 157.]

EVENTS AT HER MAJESTY'S PRISON, HULL

Address for Return,

of the Report of an Inquiry by the Chief Inspector of the Prison Service into the cause and circumstances of the events at Her Majesty's Prison, Hull, during the period 31st August to 3rd September 1976.—[Mr. John.]

Oral Answers to Questions — FOREIGN AND COMMONWEALTH AFFAIRS

Middle East

Mr. Walters: asked the Secretary of State for Foreign and Commonwealth Affairs if he will make a statement on the present situation in the Middle East and the prospects for peace.

The Secretary of State for Foreign and Commonwealth Affairs (Dr. David Owen): The statement issued by the Nine on 29th June demonstrates the importance which the European Community, including the United Kingdom, attaches to an urgent resumption of peace negotiations.

Mr. Walters: I welcome the EEC statement on the Middle East as a positive contribution towards achieving peace in the Middle East, but will the Secretary of State say what effective representations are now being made to the Israeli Government about the continuing building of settlements in the occupied territories in defiance of international law, which can only make progress towards peace more difficult?

Dr. Owen: We are in close and continuing contact with the Israeli Government, but I know of no new decisions taken by the new Israeli Government about settlements. I shall certainly look into any details that the hon. Gentleman cares to give me.

Mr. Thorpe: Has the Foreign Secretary seen that yesterday in another place my noble Friend Lord Byers introduced a Bill to protect companies, individuals and businesses from the effects of foreign boycotts? There is no substitute for a lasting settlement in the Middle East, but can we at least expect that in the interim the Government will give the same protection to British individuals and companies as is accorded by the United States Government to United States citizens and companies in that country?

Dr. Owen: I believe that there is another Question later on the Order Paper relating specifically to the boycott. The Government's view is well known. There was an Adjournment debate on this subject only a few days ago.

Mr. Greville Janner: Is my right hon. Friend aware that during the Adjournment debate on this matter a short time ago the Government spokesman specifically refused to stop the disgraceful practice of authenticating boycott documents? Will my right hon. Friend agree to give renewed consideration to stopping this practice, in view of what is, I think, the universal feeling of hon. Members


that it is quite wrong for this practice to continue?

Dr. Owen: There is a specific Question on the Order Paper about that. I read the report of my hon. Friend's speech in that Adjournment debate and the speech of my hon. Friend the Minister who replied. I thought that it was a very useful exchange of views.

Mr. Hugh Fraser: The Secretary of State must be aware that there is a view that the statement by the Foreign Ministers has unnecessarily heightened tension in the area. By its open commitment to a Palestinian State it is a sort of Balfour Declaration in reverse, without the strength, or occupation, and should be reconsidered.

Dr. Owen: I respect the right hon. Gentleman's views and I know his feelings on this matter, but what he has said is not correct. The statement was not referring to a Palestinian State. It was referring to the need for a Palestinian homeland. The statement needs to be read as a whole. It speaks of the need for a commitment to peace, with exchanges between all the parties concerned, with a view to establishing truly peaceful relations. I believe that it is a balanced statement and I do not believe that it has heightened tension in the area.

Mr. Raphael Tuck: Is my right hon. Friend aware that recently the word "territories" in Uniled Nations Resolution No. 242 has suffered a metamorphosis to "all territories"? Will my right hon. Friend repudiate that change to the best of his ability?

Dr. Owen: What has concerned us since 1967 is the continuing occupation of the territories that were overrun in 1967. That is what Resolution No. 242 refers to. If people are extending it to other territories, that is going far wider than Resolution No. 242.

China (Foreign Minister)

Mr. MacFarquhar: asked the Secretary of State for Foreign and Commonwealth Affairs when he next proposes to meet the Chinese Foreign Minister.

The Under-Secretary of State, Foreign and Commonwealth Office (Mr. Evan Luard): The Chinese Foreign Minister

has been invited to visit the United Kingdom. No date has yet been fixed.

Mr. MacFarquhar: When my hon. Friend sees the Chinese Foreign Minister, will he express his satisfaction that this country has been able to help the Chinese People's Republic during the last five years by training about 400 students in various subjects? Will he also express his keen disappointment at the fact that it is not yet possible for senior British sinologists to spend prolonged periods in China and that they are not allowed access to Chinese libraries while they are there?

Mrs. Dunwoody: Particularly my hon. Friend the Member for Belper (Mr. MacFarquhar).

Mr. Luard: I think that my hon. Friend has a vested interest in this subject. I hope that I shall have a chance to speak to the Chinese Foreign Minister on this and other subjects. My hon. Friend is correct in saying that in the last five years 391 Chinese student-years have been spent in this country and 58 British student-years have been spent in China. I agree that there is equal value in exchanges in both directions. I agree with my hon. Friend that we should like to see more British people studying in China. We believe that China has a great deal to offer that is of value to foreign scholars and we shall continue to pursue the subject.

Mr. Forman: When the Chinese Foreign Minister comes here, as well as discussing cultural links between this country and the Chinese People's Republic, will the Minister and his colleagues also be discussing ways of increasing our trade with China, particularly our technical co-operation in the sphere of offshore oil and gas development?

Mr. Luard: We are certainly concerned about improving our trade with China. For the first time in many years we had a deficit in our trade with China over the past year, and we want to remedy that. I agree that the area that the hon. Gentleman mentioned would be useful for increasing our exports to China.

Mr. Hooley: If my hon. Friend meets the Chinese Foreign Minister, will he discuss with him the anachronistic situation of Hong Kong and the possibility of


resolving that absurd situation in a civilised way over the next two or three years?

Mr. Luard: The Chinese Government are very well aware of our views about the position of Hong Kong. They have indicated no anxiety radically to change the existing situation in the immediate future, but we shall continue to keep these questions in mind.

Chemical Warfare (Disarmament Treaty)

Mr. Dalyell: asked the Secretary of State for Foreign and Commonwealth Affairs if he is satisfied that the technical studies being made of possible procedures for verifying observance of a chemical warfare disarmament treaty are commensurate not only with the verification provisions envisaged in the draft treaty put forward by Her Majesty's Government in 1976 but also with any other such provisions which Her Majesty's Government might have to consider.

The Minister of State, Foreign and Commonwealth Office (Mr. Frank Judd): Yes, Sir. The United Kingdom takes an active part in meetings of experts of the Conference of the Committee on Disarmament on this subject.

Mr. Dalyell: Are the technical studies actually being done? Secondly, are we being kept informed of the American-Russian bilateral talks?

Mr. Judd: Yes, Sir. I said that we are co-operatng, and indeed we are being kept informed on the American-Russian talks. We expect a decisive statement in due course.

Falkland Islands

Mr. Thorpe: asked the Secretary of State for Foreign and Commonwealth Affairs whether, at the forthcoming talks with the Argentine about the future of the Falkland Islands, he will make it clear that under the Charter of the United Nations the islanders have the right of self-determination.

Sir Nigel Fisher: asked the Secretary of State for Foreign and Commonwealth Affairs what matters will be discussed during the forthcoming talks with the Government of the Argentine about the Falkland Islands.

Sir Bernard Braine: asked the Secretary of State for Foreign and Commonwealth Affairs if it is intended to hold the proposed talks with the Argentine on the future of the Falkland Islands before or after the autumn elections in the islands.

The Minister of State, Foreign and Commonwealth Office (Mr. Edward Rowlands): As was announced yesterday, the first round in Anglo-Argentine negotiations on the Falkland Islands dispute is taking place in Rome from 13th to 15th July. The topics for discussion are set out in the terms of reference for these negotiations which were announced on 26th April. The Government's commitment to the principle of self-determination will once again be made clear to the Argentine during the current negotiations.

Mr. Thorpe: I am grateful to the Minister for that reassurance. but will he also see that it is made clear to the people of the Falkland Islands themselves? Will he accept that if what he says is correct any diminution of their sovereignty can take place only with their consent, and that if it is not forthcoming this country will be morally obliged to reject any such claim from the Argentine?

Mr. Rowlands: We shall of course inform the Falkland Islanders about our actions and our approach to the talks. I have myself sent a message to the Island Council informing it in advance of the first round of talks. I made it very clear to the House when we debated the matter on 1st March that the Government would not even bring proposals to the House unless they had received the acceptance of the islanders themselves.

Sir N. Fisher: I am grateful to the hon. Gentleman for his forthright declaration, clear and categorical, that there can be no change in sovereignty without the full consent and approval of the islanders. But whilst it may be advisable and indeed even necessary to offer the Argentine participation in the development of fishing, exploration for oil and that type of thing, will he at least consider lengthening the airfield so as to make the islanders less dependent on the Argentine for their communications?

Mr. Rowlands: We have already carried out one extension of the airfield, which has only just been completed. The idea of extending it considerably to take very large international airliners has been the subject of considerable debate. It would be extremely expensive —a multimillion pound project—and on the basis of existing evidence we could not commit ourselves to it. However, we are willing to commission, when it seems appropriate, any preliminary studies necessary to investigate the matter further. I should like to tell the hon. Gentleman, who is, as I am, a keen supporter of the Falkland Islanders' welfare, that if we built the extension and it turned out to be something of a white elephant the burden of cost to the islanders themselves could be considerable.

Sir B. Brain: Why, just before the British community in the Falkland Islands holds its own free elections, are the Government holding any talks at all with the Fascist Government of the Argentine, whose disregard of fundamental human rights has already caused the United States to cut off aid'?

Mr. Rowlands: The hon. Gentleman will know that I went to the islands myself to talk to the Island Council and met many islanders to explain the background to the round of talks. I said that we should probably have the first round at about this time, and this was accepted by the Island Council without demur. We should be taking part in subsequent talks, and after the elections we should continually consult and maintain our consultations with the islanders and the new Island Council. There is no way in which we have gone behind the backs of the islanders in this respect.

Mr. Grocott: On the wider issue of the remaining dependent territories of the Commonwealth, does my hon. Friend agree that the Government do not quite know what to do with those territories? As any one of them, including the Falkland Islands, could become a flashpoint at any time, is it not about time we had a proper and comprehensive review of what our policy to the remaining territories should be?

Mr. Rowlands: I think that probably as Minister I have spent as much time as

most Ministers historically, if not more, in dealing with our remaining dependent territories and considering their future. I agree with my hon. Friend that we need a coherent policy. We have been evolving such a policy for the majority of the territories concerned—for example, the Associated States in the Caribbean, the Solomon Islands, the Gilbert Islands and the Ellice Islands, and the Seychelles last year. We are evolving and have evolved a coherent view in respect of most dependent territories, but no general policy could apply to particular situations, and there are particular situations in places such as Belize and the Falkland Islands.

Mr. Michael McNair-Wilson: Has the hon. Gentleman seen a recent copy of the Falkland Times, which expresses its considerable concern about the lack of proper and authentic information about what the British Government have in mind? Will the hon. Gentleman give an absolute assurance to the House that the people of the Falkland Islands individually—perhaps through that publication—will he told about the substance and details of the talks now going, on in Rome?

Mr. Rowlands: I resent the implication that we have been keeping information from the islanders. I was the first Minister in nine years to go to the islands to discuss the problems with the islanders themselves. I have kept up, by regular correspondence, consultation with the islanders and the Island Council, and whenever Falkland Islanders have come here I have tried to meet them. We are maintaining and developing first-class co-operation between ourselves and the Falkland Islands. I do not think that the Falkland Times is the only vehicle for conveying the views of the British Government to the Falkland Islanders.

Mr. Ogden: Does my hon. Friend accept that no hon. Member has any right to complain about the lack of personal interest that my hon. Friend has shown in the affairs, welfare and well-being of the people of the Falkland Islands? Does he also accept that there is no reason why detailed progress on local issues, including economic issues, should be held up simply because talks are taking place with another Government?

Mr. Rowlands: Of course. I think that many of the hopes and aspirations of the islanders on local issues can be met, and we shall make every effort to do so.

Mr. Tapsell: Is it a fact that a Scottish company is interested in helping the development of the Falkland Islands fisheries? Will this sort of project be encouraged by Her Majesty's Government?

Mr. Rowlands: We have given every encouragement particularly in recent months, following publication of the Shackleton Report—to encourage anybody who wishes to invest and to develop, particularly on the fisheries side in the islands and island waters. That is one of the few areas for development that the report identifies. I cannot give specific information about the particular company mentioned by the hon. Gentleman, but I assure him that we are giving the maximum encouragement to such investments or projects.

Mr. David James: asked the Secretary of State for Foreign and Commonwealth Affairs what plans he has to generate income from the airfield on the Falkland Islands.

Mr. Rowlands: The Falkland Islands Legislative Council announced on 15th June an imposition of a£2 a head embarkation fee at the new airport. The prospects for the Falkland Islands Government being able to generate further income will be dependent on future economic activity in the region.

Mr. James: Will the Minister seriously research the proposition that if the runway on the Falkland Islands were greatly extended it could be part of a major alternate great circle route to Australia and New Zealand? Will he bear in mind that airports are highly labour-intensive?

Mr. Rowlands: I have already dealt with the question of the extension of the airfield in answering previous supplementary questions. At the moment we have no evidence to suggest that many of the commercial airlines wish to travel to and refuel from the Falkland Islands. It is one of the many aspects of the airport extension project that require further study.

Mr. Whitehead: Will my hon. Friend accept that economic support for the people of the Falkland Islands is the best assurance they could have that we shall not push them closer to the repressive regime in the Argentine? When we consider the statement by Senor Allara today, at the outset of the talks in Rome, that the Argentine has full control over the Falkland Islands, will my hon. Friend accept that there is cause for the worries and reservations of the islanders?

Mr. Rowlands: On the second part of my hon. Friend's question, it is just not so. We are in control of the Falkland Islands, together with the Falkland Islanders themselves.
On the first point, we have said that we can get on with many projects in the Falkland Islands and help in local development, but we think--this was Tony Crosland's point when he made a statement earlier this year—that the major areas of economic development will require a degree of co-operation with the Argentine Government, and that is part and parcel of these talks.

Mr. Brocklebank-Fowler: Will the hon. Gentleman confirm that no decision with regard to the future of the Falkland Islands will be made during the recess or without further reference?

Mr. Rowlands: I give that assurance. One does not envisage these talks being suddenly completed. This has been a long-standing problem and we have no miracle solution to it.

Mozambique

Mr. Evelyn King: asked the Secretary of State for Foreign and Commonwealth Affairs whether he will seek to raise in the United Nations Commission on Human Rights the brutalities being committed in Mozambique and other front-line States.

Mr. Rowlands: No, Sir.

Mr. King: Does the Foreign Office accept that, in the context of human rights, unspeakable brutalities are being committed daily in Mozambique and frontline States, and not only by Amin? If the Foreign Office is to preserve any reputation for impartiality, is it not really time that it became colour-blind on this issue?

Mr. Rowlands: The terms and language of the hon. Gentleman's supplementary question really are monstrous, in the context—[interruption.] Obviously. there are Press reports, but they are not substantiated, and we do not think that we should take these cases to the United Nations Commission on Human Rights unless there is evidence that substantiates them.

Mr. Cronin: Does. my hon. Friend agree that it would be unrealistic at present to take the matter before the United Nations Commission on Human Rights? Does he also agree that, unhappily, brutalities are inevitable in any kind of guerrilla warfare of this nature and that the best course of action that his right hon. Friend could take would be to pursue a peaceful solution, in spite of the obduracy of the Smith Government?

Mr. Rowlands: I certainly think that the real peace and security of the area, and the human rights of all people in the area, will be best promoted by a negotiated settlement, as soon as possible, on the Rhodesia question.

Mr. Goodhew: If the hon. Gentleman will not take this matter to the United Nations, will he at least accept the right of the people of Rhodesia to self-determination and not have his policy dictated to him by the front-line States which are guilty of this sort of thing?

Mr. Rowlands: We have no intention of having our policy dictated by anyone. Our policy on Rhodesia is aimed at achieving the very thing that the hon. Gentleman talks about—the introduction of free and fair elections to identify who really are the representatives of the Zimbabwean people.

Mr. Faulds: Is there any way that my hon. Friend can devise to enlighten the obdurate ignorance of hon. Members such as the hon. Member for Dorset, South (Mr. King) about the realities of what is happening in Mozambique? Is the hon. Member really so unknowing of the realities of the situation as not to realise that 600 Rhodesians were massacred by Rhodesian forces and that the Selous Scouts are acting in disguise, pretending to be guerrillas and carrying out mass murders in Southern Rhodesia?

Mr. Rowlands: I do not think it is for me to recommend how we should educate certain Opposition Members in this respect, but a visit to Mapai, or to Mozambique, would show that there have been very considerable atrocities and very considerable indiscriminate killings inside Mozambique as a result of the actions of the Rhodesian security forces.

Ankara

Mr. Christopher Price: asked the Secretary of State for Foreign and Commonwealth Affairs if he will seek to pay an official visit to Ankara.

Mr. Judd: My right hon. Friend has no immediate plans to do so, but I hope to visit Ankara at a mutually convenient time as soon as possible after a new Turkish Government have been confirmed in office.

Mr. Price: Is my hon. Friend aware that the difficulties that the Turks are having in creating a stable Government are producing great difficulties also for the people of Cyprus? Is he aware that a Cyprus settlement is being held up by this long delay? Will he give some sort of assurance from Her Majesty's Government that they will pursue a settlement in Cyprus, particularly in view of the recent court case in Britain, as Lord Denning's minority view, not supported by his two fellow judges, has caused great disquiet in the island?

Mr. Judd: I assure my hon. Friend that the Government will pursue with all possible effectiveness a solution in Cyprus. This is a high priority. I also assure him that we regard a stable solution to the political difficulties in Turkey as a crucial element in finding that solution.

Mr. Thorpe: Is the hon. Gentleman aware that, at the very lowest estimate, there are 2,000 Greek Cypriot citizens who have disappeared and not been accounted for, some of whom are alleged to be detained without trial and charge by the Turkish authorities on the mainland? Does he accept that until this problem is solved there will be no possibility of such a settlement?

Mr. Judd: I assure the right hon. Gentleman that I am aware of these allegations and, indeed, that I am concerned by them. But I am sure he will


appreciate it when I tell him that all our investigations have failed to produce hard evidence. If he has hard evidence. I should like to see it.

Mr. Jim Spicer: When the Minister makes his visit to Ankara, will he undertake to assure the Turkish Government that in this country we are deeply appreciative of their loyalty to and continuing support for the NATO Alliance? Will he further assure the Turkish Government that we accept fully their special relationship with the European Community and that we shall do all we possibly can in the future to protect that special relationship?

Mr. Judd: We recognise, of course, the importance of the relationship of Turkey to the European Economic Community, and we also recognise the military contribution by Turkey to the defence of the south-eastern flank of NATO.

Rhodesia

Mr. Rifkind: asked the Secretary of State for Foreign and Commonwealth Affairs whether he will make a statement on the progress of Government policy with regard to a settlement in Rhodesia.

Mr. Brocklebank-Fowler: asked the Secretary of State for Foreign and Commonwealth Affairs if he will make a further statement on Rhodesia.

Dr. Owen: The Anglo-United States Consultative Group has completed a further round of consultations in Africa. I have studied its report and am considering urgently how best to proceed with the present initiative.

Mr. Rifkind: Will the Foreign Secretary comment on the reported discrepancy between the statements of the British diplomat, Mr. Graham, who has indicated that the Rhodesian authorities are now prepared to contemplate British supervision of Rhodesia during a transition period, and the denial of the Smith regime a day later that such an agreement had been reached?

Dr. Owen: It is very difficult to comment on these allegations. I think it is best to try to pursue a course of negotiations without exchanging public statements. But the statement issued by Mr. Smith's spokesman, to which the hon. Gentleman referred, was a very dis-

appointing one, and certainly in some parts it conflicts with the report that I had from Mr. Graham and Ambassador Low.

Mr. Brocklebank-Fowler: In the light of recent developments, is it not now clear that time is running out? Will the right hon. Gentleman now consider establishing a permanent mission to prepare for a referendum to determine an interim Government? Further, will he now report on the discussions that he is reported to have had concerning the presence of a Commonwealth or British force to safeguard the security of Rhodesia during an interim period of government?

Dr. Owen: I think that time, in some senses, has been running out ever since the illegal declaration of independence. I do not hide the fact that I think that the situation is deteriorating. It has been deteriorating steadily now for some years, particularly since the armed struggle has gathered momentum.
The problem that we face, more than anything else at the moment, is how to achieve a transition during which there could be fair elections in a climate of peace. This relates to law and order and to some way of bringing together the two armies, the Rhodesian defence forces and the liberation armies. [Interruption.] Hon. Members must recognise that there is a war being fought and that if we wish to bring about a peaceful settlement we shall have to try to have a cease-fire, and that means both sides ceasing fire.

Mr. Hooley: Does my right hon. Friend agree that the key factor on the ground at the moment is the continuing flow of oil to Mr. Smith's war machine? What steps will Britain and the United States take to interdict that flow of oil, since mere representations will have no effect?

Dr. Owen: There is no physical way that we can interdict, in the sense of using force. What is necessary is to bring some influence to bear on the South African Government, who, ever since the change of Government in Mozambique, have allowed oil to flow into Rhodesia, in direct contravention of the sanctions. But the whole question of how this can be done, particularly in relation to subsidiaries of international oil companies. is under investigation in this country and


in many other areas. I believe that this is a central problem, which will have to be faced if the armed struggle continues in Rhodesia.

Mr. John Davies: Does the Secretary of State realise that we are very anxious at the thought of this House going into recess in the state of uncertainty that currently exists and the condition which the right hon. Gentleman himself has referred to as a deteriorating one? Does he know that the reference to the people through the ballot box which we have so long advocated cannot be achieved without proper advice from Salisbury itself and that the delay in setting up a mission in Salisbury to advise him and this country how to set about such a reference to the people is long overdue? Can he now please assure us that there will be a full statement to the House before the House rues, so that these and other matters may be adequately discussed?

Dr. Owen: I understand the right hon. Gentleman's concern over the matter. I do not think that:I should promise to make a statement if I have nothing to say, but I believe that were there to be any changes in the situation which the House would wish to be aware of I should let the House know. The House should know that I intend to go to see Secretary of State Vance in Washington on Saturday next week.

Mr. Clemitson: Returning to the subject of the breaking of oil sanctions, what action are the Government taking to follow up the communique issued at the end of the Commonwealth Heads of Government meeting in June? In particular, is our legislation being re-examined with a view to reinforcing and strengthening enforcement procedures, and what steps are we taking to persuade other countries to do the same?

Dr. Owen: As my hon. Friend knows, under our legislation I have established the inquiry under Mr. Bingham to look into allegations about oil sanctions busting, but I think that our own legislation is strong enough. There have been no cases in which we have not had powers to deal with breaches when they have come to our notice. The problem is those companies in South Africa operating under South African legislation. We have

referred to the United Nations Sanctions Committee over the years many different breaches of sanctions orders and we are taking all steps that we can to tighten up existing sanctions. Also, of course, there are pressures for an extension of sanctions.

Mr. Ian Lloyd: After the Secretary of State has had the opportunity to consult Mr. Vance, will he take the opportunity that that presents to put out a clear definition of majority rule, which one hopes means the civilised administration of alternating majorities freely elected under the rule of law?

Dr. Owen: I have often told the House that I see majority rule as being based on the widest possible franchise, and it is my judgment that a constitution that was not based on one man, one vote would be unacceptable.

Belize

Mr. Luce: asked the Secretary of State for Foreign and Commonwealth Affairs if he will make a statement on Belize, in the light of the recent Commonwealth Heads of Government Conference.

Mr. Rowlands: I held talks with the Guatemalan Foreign Minister in Washington last week. I will, with permission circulate the agreed communiqué in the Official Report. It was necessary to take steps to strengthen our garrison in Belize but I believe both sides wish to reduce tension and resume the search for a negotiated settlement. With this in view, I will be visiting Guatemala shortly for further talks.

Mr. Luce: In view of the widespread international support for the British Government's commitment to ensuring the safety of Belize against invasion from Guatemala, will the Minister now take an urgent diplomatic initiative to obtain the help of Commonwealth and regional Caribbean Governments in ensuring that Belize can obtain viable independence—especially in the light of the offered support from the Commonwealth Heads of Government?

Mr. Rowlands: As the hon. Gentleman says, there has been widespread international support for the desire of Belize to become independent as quickly as possible. But we think that the best way to provide long-term security for Belize


is by providing a negotiated agreement and settlement with its neighbour, Guatemala, with which both sides will have to live, irrespective of the situation.

Mr. Palmer: On a point of order, Mr. Speaker. Should not my Question No. 28, dealing with the same subject, be taken with this Question?

Mr. Speaker: I cannot answer for the Minister, but if a Question is a long way down the list it usually has to wait.

Mr. Thorpe: Reverting to the original Question, is it not a fact that at the Commonwealth Conference in Kingston a suggestion was made of a Commonwealth military guarantee for Belize? Could that be reactivated? Secondly, is it the Government's view that the Guatemalans have no legal claim to any of the territory that they are claiming? Thirdly, have investigations been concluded in regard to the 26 tons of ammunition and arms that were seized in Barbados and that passed through London Airport?

Mr. Rowlands: On the first question, this matter was raised at the Kingston Conference and again at the recent Commonwealth Heads of Government meeting here. We feel that the best way of pursuing a peaceful settlement and ensuring the security of Belize is to enter into direct negotiations with the Guatemalan Government, at which negotiations alongside me always is Mr. Price and his fellow Belizean delegates. As for the Barbados incident, that is for the Barbadian Government, but they have been conducting investigations and have impounded the armaments that were on board the plane. On the last point, of course we dispute the legality of the Guatemalan claim, although in fairness to them I should say that they dispute our legal right in this respect.

Mr. Dalyell: How can we be absolutely sure that, granted the smallness of the population and the poverty of the State, there are not quite a number of people, apart from their leaders, who would acquiesce in joining Guatemala? Can we be sure of that?

Mr. Rowlands: We can be absolutely sure that the overwhelming majority of Belizeans wish to be Belizean. They have evolved democratic institutions of their own, as a dependent territory. I think

that that wish and aspiration is shared not only by the Government of Belize but by the overwhelming majority of Belizean people. The fact that the Belizean Opposition members were a part of the delegation attending the negotiations and that they have made a statement to that effect bears testimony to it.

Mr. Durant: Is the hon. Gentleman aware of the importance of the integrity of Belize to the whole Caribbean area. which is watching this situation closely? Will he beware of any sell-out of the southern part of Belize, where obviously the Guatemalans have a particular interest in relation to oil, since that would be damaging to the future of Belize as a State?

Mr. Rowlands: One should not talk in terms of a sell-out. We are trying to find different ways of bridging the gap between ourselves and the Guatemalan Government—a gap that has existed for generations. Terms like "sell-out" are not appropriate to the nature of these negotiations.

Mr. Tapsell: Is it not an extraordinary point of view that the hon. Member for West Lothian (Mr. Dalyell) has advanced? Is it not a fact that almost everybody who knows about Belize knows that, whatever else they may disagree about, almost no one in Belize wants to be governed by Guatemala?

Mr. Rowlands: I think that my hon. Friend was putting a question, and I am certain that my answer and the point that the hon. Member has just made reflect overwhelmingly the views of all but perhaps a handful of people in Belize. They are Belizean and they believe in self-determination and the future of their own small country.

Following is the communiqué:

JOINT COMMUNIQUÉ

UK/GUATEMALA TALKS ON BELIZE

(1) Representatives of the Governments of Guatemala and of the United Kingdom met in Washington on 6/7 July in a third round of negotiations at Ministerial level to discuss the question of Belize. The Guatemalan side was led by Dr. Adolfo Molina Orantes, Foreign Minister of Guatemala. The British side was led by Mr. Ted Rowlands MP, Minister of State at the Foreign and Commonwealth Office. The British delegation included the Hon. George Price, Premier of Belize and an all-party delegation.

(2) There was a detailed discussion of the means by which the controversy over the future of Belize might be solved peacefully and harmoniously, taking into account the interests of all parties. In the course of these discussions both sides put forward proposals for resolving the question. It was agreed that the proposals submitted would be the subject of the most careful study in order to pursue the negotiations to a peaceful solution acceptable to all parties.

(3) Among other matters the British side explained the procedures that have been followed to bring dependent territories to independence, pointing out that such procedures inevitably took time and were always public and were never secret. There could not therefore be any sudden move to independence for Belize.

(4) It was also agreed that the British Minister would visit Guatemala as soon as possible in order to discuss the means of reducing tension and the next stages in the negotiations. Thereafter a date for the next meeting will be decided.

Chile

Mr. Flannery: asked the Secretary of State for Foreign and Commonwealth Affairs how many Ministers of the present Government of Chile have visited Great Britain since the fall of the Allende Government.

Mr. Rowlands: We are aware of four such visits, all private: by the Chilean Ministers of Labour, Foreign Affairs, Finance and Mining.

Mr. Flannery: Will my hon. Friend accept from me that there was deep concern throughout the Labour movement that the Finance Minister of the Chilean Fascist junta which brutally and bloodily overthrew the democratically-elected Government of Chile under President Allende should come to this country? Will he further accept that resolutions have been passed all over the country against the fact that this man came here on what is termed a private visit? Will he assure me that no one from the Foreign Office sat in on any of the meetings that this man held?

Mr. Rowlands: In many respects I share my hon. Friend's view about Chile. These visits were private, and no British Minister attended arty of the functions. A small number of officials attended, on an information basis only. But no one can have any doubt where this Government stand in relation to the Government of Chile.

Mr. Madden: What representations are the Government making to ensure that the commitment made by the Chilean regime to the Secretary General of the United Nations to investigate the whereabouts of 2,500 missing people in Chile is carried out? What steps is the Minister taking to ensure that non-traditional exports from Chile, including milk, are not allowed to enter Europe?

Mr. Rowlands: I do not have any information on the second point but I shall certainly pursue it. We have a direct interest in a number of acknowledged arrests by the Chilean régime, particularly of Mr. William Beausire, who is a British citizen. Obviously an independent inquiry is urgently needed. We have pressed for such an inquiry, and so has the Secretary General of the United Nations.

Mr. Ronald Bell: Is the Minister aware that there are a good many Socialist countries with less than perfect democratic institutions whose Ministers are welcomed in this country? Can he explain why there is this distinction of attitude between Chile and Socialist and Communist countries?

Mr. Rowlands: Anyone who has assessed, analysed and studied the nature of the Chilean régime, how it came to power and how it has behaved since, will recognise why such strength of feeling exists in this country.

Oral Answers to Questions — EUROPEAN COMMUNITY

Middle East

Mr. Moonman: asked the Secretary of State for Foreign and Commonwealth Affairs if he will make a further statement on the statement by the EEC countries on Middle East affairs.

Dr. Owen: I have nothing to add to the statement made by my right hon. Friend the Prime Minister on 30th June.

Mr. Moonman: As the EEC Ministers have accepted a rather controversial statement on the terrorist PLO and the homeland, will the Foreign Secretary and his colleagues in Europe speak out clearly about all the problems associated with the Arab boycott of British goods of companies trading with Israel and the loss of British jobs that has resulted? Will


he take account of the French Government's experience in their attempt to amend Article 32 of the French penal code to guide his colleagues and himself in this difficult area?

Dr. Owen: I deplore boycotts of all kinds. This one is not as effective as is often claimed, but I wish that it did not exist. We shall look at any measures that will reduce the effects of the boycott. As I said in an Adjournment debate, our view on the boycott is well known, and I emphasise it again today.

Mr. Crouch: Is the Foreign Secretary aware that many of us welcome this statement from the EEC Heads of Government as a statement of the truth which has so often been left unsaid in the past, particularly in regard to the rights of the Palestinians to a homeland and the admissibility of the acquisition of territories by force by Israel?

Dr. Owen: The danger is that each side takes up one side of the statement. The statement must be read as a whole. It rightly pays attention to the Palestinian homeland and the question of territories occupied by Israel. It also draws attention to the quality of the peace in the Middle East and the right of Israel to exist. It may be said by some that these are conflicting statements, but I do not think so. They are essential elements for any negotiated settlement. We need to have a series of negotiations on this problem, otherwise the world will be faced with a serious conflict in the Middle East.

Mrs. Dunwoody: Is the Foreign Secretary aware that this statement, taken in conjunction with the already specific bias towards Arab countries that is very prevalent in the economic protocol of the EEC, will only lead to a greater degree of disquiet in Israel and among those who wish to see the maintenance of a democratic State in the Middle East?

Dr. Owen: I strongly adhere to the right of Israel to exist and I wish to see a democratic country upheld in this region. Many of those who support the Arab cause also believe in this situation. I do not think that the right of Israel to exist is a serious issue among sensible leaders of the Arab world. We must negotiate on the controversial question over the territories, particularly the land that

was in dispute after the 1967 war. We must achieve a stable environment, with some measure of security for Israel in new territory which would be its country. This must be negotiated. It is possible for this to be done if we approach it with the balance that we envisage in the statement.

Mr. Michael Latham: The Foreign Secretary may wish to be even-handed. but the statement is not seen in that light in Israel. There has been considerable concern there about it, as there has been about the diplomacy of President Carter.

Dr. Owen: That may be the view of Israel, but the Israelis must take account of the justice of the case and the views of the world. They have always accepted that any settlement would be on the basis of Resolution 242. Implicit in this is the fact that the acquired territory will have to form part of the negotiated settlement, and some of it will have to be given back. The question of the Palestinians has long been controversial, but there is growing opinion, supported by President Carter, that the homeland will have to be part of any settlement. We have not prejudged the question of what that homeland would consist of, and this will be subject to negotiations.

Foreign Ministers

Mr. Henderson: asked the Secretary of State for Foreign and Commonwealth Affairs when he next intends to meet EEC Foreign Ministers.

Mr. Marten: asked the Secretary of State for Foreign and Commonwealth Affairs when he will next attend a meeting of the Council of EEC Ministers.

Mr. Canavan: asked the Secretary of State for Foreign and Commonwealth Affairs when he next expects to meet his EEC colleagues.

Dr. Owen: I met the Foreign Ministers of Community countries yesterday at a political co-operation meeting. I expect to meet them again at the Foreign Affairs Council on 26th July.

Mr. Henderson: When the Foreign Secretary next meets his colleagues on 26th July, no doubt he will have an opportunity to discuss the common fisheries policy. Will he make it clear


that there is a growing body of opinion in this country which believes that if the EEC persists with its obstinate and greedy attempt to take over our fishing stocks it will be the end of the Common Market for us?

Dr. Owen: No one in the Council of Foreign Ministers is unaware of the very strong feelings in this country about the common fisheries policy. My colleagues are well aware that this policy will have to be substantially readjusted to meet the legitimate claims of a number of States with fishing interests—not just Britain, but Ireland and other countries. In the light of the 200-mile limit we must have a common fisheries policy that is more attuned to the interests of the nine member States. This will have to be negotiated. There is recognition in the Community that there will have to be compromise on all steps. I am confident that the Minister of Agriculture will achieve a settlement of this vexed issue.

Mr. Marten: As foreign affairs are not strictly subject to the Treaty of Rome, will the Foreign Secretary propose that at the next Council meeting Ministers should be joined by the EFTA Foreign Ministers, particularly now that the free-trade area is down to zero tariffs? Will he also suggest that the new applicant member States, once they have made their applications, should also be invited to attend the Council of Ministers meeting in order to get a foretaste of life in the Community and also to stage a grand alliance of Foreign Ministers of Europe? Would that not be more truly representative of Europe than just a meeting of Foreign Ministers of the Nine?

Dr. Owen: Discussions take place in the Council of Europe among 19 countries on matters of common interest. Membership of the EEC is more committed, as the hon. Gentleman knows, than membership of EFTA, and it is best to keep Community affairs within the Council of Nine and widen the circle to a Council of 19 when it is appropriate.

Mr. Canavan: When the Foreign Secretary next meets his Common Market friends, will his enthusiasm for the EEC spread as far as accepting and supporting the report of the Common Market officials who predicted that next year Britain would have an economic growth of 3 per

cent. and that wage increases of more than 10 per cent. could have a beneficial refiationary effect on our economy, because the extra money spent would help to generate more jobs? Is this not the first bit of common sense that has come out of the Common Market?

Dr. Owen: I am glad to see that my hon. Friend has found something in the Common Market on which to comment favourably. I hope that we shall achieve a faster rate of economic growth.

Mr. Hurd: Is it not now plain, particularly following last week's vote on the direct elections legislation, that it is almost impossible to make a success of British membership of the EEC so long as there are Government Ministers who work openly and systematically to destroy it?

Dr. Owen: I do not believe that to be the case. The Opposition must accept the fact that there are, have been, and, I regret, will continue to be for some time, substantial differences of view on the issue of Europe. It is one thing to hold a different view but another to suggest that people are prepared systematically to undermine our membership of the Community. That is not the case, and it is not the record. I prefer to interpret the free vote of the House of Commons on this issue as indicating that there are an overwhelming majority in the House who want direct elections. I hope that we shall now manage to carry the legislation through.

Helsinki Final Act (Belgrade Meeting)

Mr. Blaker: asked the Secretary of State for Foreign and Commonwealth Affairs whether he will make a statement about his latest talks with the other Foreign Ministers of the EEC regarding the Belgrade Review Conference.

Mr. Luard: Various aspects of the Belgrade CSCE follow-up meeting were discussed at meetings of the Foreign Affairs Council on 21st June and at the ministerial political co-operation meeting on 12th July. On the latter occasion Foreign Ministers received a report from the Political Committee on the progress of the Belgrade preparatory meeting. We shall continue to keep a close watch on the course of that meeting with a view to ensuring that the arrangements agreed


there allow for a thorough review of implementation of the Final Act at the main meeting in the autumn.

Mr. Blaker: Will the Minister urge the Secretary of State in these discussions to resist the idea that the Soviet Union might abandon détente because of the moderate criticism made in the West of Soviet violation of human rights? Is it not clear that détente should be seen not as a favour granted by the Soviet Union to the West but as a matter in which the Soviet Union has an interest for a variety of reasons, including economic ones?

Mr. Luard: I note what the hon. Gentleman says. I personally share his view. I believe that the Soviet Union sees a strong national interest in the maintenance of détente, and particularly in continuing good relations with the United States Government. I agree that we should not be deterred from stating our views about human rights and other matters at the Belgrade Conference for fear that the whole future of détente may be imperilled.

Mrs. Winifred Ewing: Did the talks cover the concern expressed at the July session of the European Parliament about the human rights of Soviet Jews—a concern expressed among all political groupings in the Parliament? Will the Minister urge the Soviet Union to go for a much more open exchange of information about Soviet Jewish prisoners, many of whom have been adopted by individual Members of Parliament in the various Parliaments of the EEC?

Mr. Luard: Concern on that matter is deeply felt in this House and in the Common Market as a whole. The hon. Member can be sure that the Government reflect those views in our discussions. Discussions in the EEC have been related mainly to the preliminary Belgrade meeting, which is dealing with the organisation of the main meeting, which will not begin until the autumn.

Mr. George Rodgers: Will my right hon. Friend take the opportunity of discussing with his fellow EEC Ministers the repugnance felt in many quarters at the decision of the President of the United States to go ahead with the production of the neutron bomb, particularly bear-

ing in mind the disarmament aspects of the forthcoming Belgrade Conference?

Mr. Luard: I do not think that is closely related to the Question on the Order Paper, but I shall pass on my hon. Friend's views.

European Co-operation

Mr. Arnold: asked the Secretary of State for Foreign and Commonwealth Affairs whether he was satisfied with the progress made towards greater European co-operation during the United Kingdom's tenure of the presidency.

Mr. Dykes: asked the Secretary of State for Foreign and Commonwealth Affairs if he will outline the progress made by the Council of Ministers in promoting agreed Community policies under his chairmanship in the six-month period of United Kingdom presidency which ended on 30th June.

Dr. Owen: A full account of progress made in the Community during the United Kingdom presidency will be given in the White Paper which the Government intend very shortly to lay before Parliament and which will provide an opportunity for a debate on the subject.

Mr. Arnold: Compared with what was said at the beginning of our tenure of the presidency, do the Government believe that they have achieved any improvements in the Community's legislative procedures? What areas offer the most scope for future progress in this regard? Is there a case for strengthening Coreper—and, if so, how?

Dr. Owen: I do not think we have made any improvement in legislative procedures. I have always hoped that it might be possible to separate legislative activities from political discussions. But this has so far proved difficult to do because there are genuine difficulties. As for Coreper, at the last Council of our presidency we made an experiment by referring more of the detailed amendments to Coreper and we asked the Commissioners to attend. Having assessed the general policies coming before the Foreign Affairs Council, I think that it was considered a success; indeed, the incoming Belgian presidency said that it intended to follow the same pattern.
The danger is that, in legislation, detailed regulations must come before the Council. It is this mix of legislation and political discussion that makes Council meetings difficult to handle, long and complex, and raises considerable cause for concern in the legislatures of member States.

Mr. Skinner: Is it also correct to say that in this period, despite my right hon. Friend's starry-eyed endorsement of the Common Market, all the recent opinion polls have shown that the majority of the British people want to get out of the Common Market? When he gets back across there, will the Foreign Secretary leave a message with that other Eurofanatic, Roy Jenkins, and tell him that the more he makes arrogant speeches in this country attacking those of us who voted the other night on behalf of the British people, and the more he lies about the success of the Common Market, the more the British people will come to understand that he is the man who has lined his pockets all the way to Brussels?

Dr. Owen: I resent that—

Mr. Faulds: On a point of order, Mr. Speaker. Is it proper—

Mr. Speaker: Will the hon. Member raise his point of order after Questions?

Mr. Faulds: I will raise it now, Mr. Speaker. Is it proper for an hon. Member to use the word "lie" about a most distinguished ex-Member of this House, who is serving his country abroad?

Mr. Speaker: Order. I shall deal with the matter quickly. The word would be absolutely out of order if applied to an hon. Member of this House, and it is distasteful when applied to somebody outside.

Mr. Heller: Further to that point of order, Mr. Speaker. Will you explain what is distasteful about the statement made by my hon. Friend, who said that certain people had gone to the Common Market with huge salaries?

Mr. Speaker: Taste is an individual matter, but to refer to somebody as a liar when he is not here to answer for himself is, in my judgment, and only in my judgment, distasteful.

Dr. Owen: The views of my hon. Friend the Member for Bolsover (Mr. Skinner) about the Common Market are

well known and I respect them. My views are also well known, and I think that my hon. Friend respects them, too. I think that, on reflection, when he reads what he said in Hansard, he will agree that it is better not to make such statements in this House under the guise of privilege in relation to a man who has served this House and the country with great distinction. My hon. Friend may hold different views, but it is not worthy of him to make such comments. I ask him to consider the words he used and to withdraw them.

Mr. Scott-Hopkins: Will the Foreign Secretary disregard the contemptible words used by the hon. Member for Bolsover (Mr. Skinner), who is pursuing the normal line he takes, based on ignorance of the Common Market and on complete and utter prejudice? Does the right hon. Gentleman agree, however, that in the last six months of British presidency the Council of Ministers has not had the greatest success and that our reputation in Europe continues to fall because of the behaviour of Ministers who lower the standard of this country and impede our ability to achieve what is needed in the Common Market? Is it not true that only now, after we have given up the presidency, is there any chance of the JET project coming to the United Kingdom?

Dr. Owen: I completely reject the hon. Gentleman's comments. I do not believe that that is the view of Europe. The hon. Gentleman and some of the British Press have been totally misled by some of the reports coming out of Brussels, which are highly partial and totally geared to the Commission's point of view.
During its period of presidency this country has upheld key national interests in some important areas and we shall continue to do that. My hon. Friends and I may disagree about the principle of entry to the Common Market, but there is no disagreement about our right and duty to uphold British interests. We shall do that—and it is right that we should—as a loyal member of the Community who disagrees from time to time.
One of the troubles of the British presidency was that it followed the presidencies of a number of smaller countries. It is natural and inevitable that one of the larger countries in the


Community will tend, on important issues, to push points of difference to a limit that others may find difficult to take. That is an inevitable fact of political muscle. However, the issues at stake are the common agricultural policy and the common fisheries policy, both of which are highly contentious in this country and on which the British have a strong case.

Mr. Arthur Lewis: On a point of order, Mr. Speaker. I bow to the ruling that you made a moment ago when you said that you would rather have points of order raised after Questions. However, you gave way to hon. Members who raised points of order then, even against your wish and desire. I therefore want to raise the matter on a point of order at the later time that you suggested.
There was an incident a moment ago when one of my hon. Friends, as he is entitled to do by the rules of the House, expressed his views upon a person who is not an hon. Member. He explained his views openly and forthrightly. Many of us agree with those views. I did not wish to raise this matter during Question Time—as my hon. Friend did—so I put down an amendment to a motion tabled by other hon. Members. My amendment was on all fours with the comments of my hon. Friend, that is, a condemnation of not one but a number of former hon. Members of the House who are lining their pockets at the expense of the British taxpayer and are receiving large incomes, and yet who claimed, when they were here—

Mr. Faulds: What about my hon. Friend's trip to Paris?

Mr. Speaker: Order. Hon Members should realise that I want to hear the point of order. Will one hon. Member in particular who has a strong voice—he is not even listening—please co-operate and allow me to hear?

Mr. Arthur Lewis: Each of those four or five former hon. Members all claimed to be always in favour of a prices and incomes policy—while it never applied to them.
My point of order is that my amendment has been rejected by the Table because I was told that I was attacking hon. Members. I purposely referred in my amendment to those who had taken jobs with the EEC, to their friends and

their relatives and to former Ministers. What are we coming to if my hon. Friend and I are to be prevented from making attacks—whether justified or not—on former hon. Members? I therefore ask you, Mr. Speaker, to look at the matter again, because, with great respect, it is a dangerous practice for hon. Members to be prevented from doing this, because it may set a precedent. I am not concerned with just this one issue. There is a general issue about what happens when an hon. Member ceases to be an hon. Member for various reasons and hon. Members on both sides of the House wish to attack him. Hon. Members on all sides should have the opportunity to attack a person once he has ceased to be an hon. Member.

Mr. Speaker: Our privilege in this House, which has been protected for centuries, enables us to carry out our duties as hon. Members of this Mother of Parliaments. There are strict rules about what may go on the Order Paper, not only concerning hon. Members but concerning people outside the House who are unable to answer. Our privilege should be guarded carefully and used jealously. However, I undertake to look at what has been said by the hon. Gentleman. I hope that we can now leave the matter there and not pursue it.

Mr. Marten: Further to what you said, Mr. Speaker, I should like to raise a point of order about what was said by the hon. Member for Warley, East (Mr. Faulds). The hon. Gentleman said that Roy Jenkins had left the House to serve his country. In fact, that is the one thing that he has not done and that he should not do because he should be serving the Community. That is an important point—

Mr. Speaker: Order. The hon. Gentleman is now really pursuing an argument. As Pilate said a long time ago, truth is open to many interpretations. That is a paraphrase.

Mr. Faulds: Further to that point of order, Mr. Speaker. I accept the slight correction, and I add the words "and the Community" to my phrase. I should also like to make a correction, because I was incorrect in saying that the last swanning of the hon. Member for Newham, North-West (Mr. Lewis) at the expense of the British electorate was to Paris. It was actually four days in Antwerp.

Mr. Crouch: Fur her to that point of order, Mr. Speaker. As I understand it, if you make a ruling from the Chair it is not within our capabilities, capacities or even good luck ever to consider questioning what you say. When you describe something that has been said in the House as "distasteful", we must accept that. I hope that you will not consider it necessary to explain what you considered to be distasteful, which was so obvious to everyone else.

Mr. Biffen: Further to that point of order, Mr. Speaker. The incident encompasses a matter of some principle, namely, whether it is in order for an hon. Member to describe someone outside the House as a liar, to use the Anglo-Saxon four-letter preference of the hon. Member for Bolsover (Mr. Skinner), or to use the phrase "a terminological inexactitude" as the more modest of us would suggest. It would be helpful if you, Mr. Speaker, having considered the matter, would make known to the House your considered ruling on whether one may describe the actions of those outside the House as lies.

Mr. Speaker: I must say to the House at once that on the day that the House did me the honour of electing me to the Chair I said that what undermines the dignity of the House also undermines its authority at the end of the day. I shall, of course, look at this matter because we are all enjoined to use parliamentary language, however strongly we may feel, in referring to each other. I should expect the same parliamentary language to be applied to those outside the House.

Mr. Heffer: Further to the point of order, Mr. Speaker, about those outside the House being categorised as liars, self-seekers or whatever by hon. Members. I agree that it is quite wrong for hon. Members to use such terminology on a regular basis. However, if hon. Members genuinely believe that certain people are liars or crooks, they ought to say so in the House. I have always understood that hon. Members have that right and are protected by privilege in exercising it.

Mr. Speaker: I shall deal with that point later.

Mr. Lee: Further to that point of order, Mr. Speaker. Surely the matter has to some extent been predetermined.

For example, it is surely in order to call Mr. John Stonehouse a liar, because the House of Lords, in its judicial capacity, has already ruled that he is by its dismissal of his appeal. Surely I am right to regard Richard Nixon as a liar, a crook and a person who has polluted American life in every way, bearing in mind that he was told to resign or be impeached.

Several Hon. Members rose—

Mr. Speaker: Order. I am astonished at the number of hon. Members who wish to contribute to this matter.

Mr. Christopher Price: Further to that point of order, Mr. Speaker. Although "Erskine May" has rules about the sort of language that it is proper to use in the House about the Royal Family and the judiciary, many of us on the Government Benches would be disturbed if, by your ruling, you added to that list the Commission of the European Communities. I ask you to take that fully into account in any considered ruling that you may give.

Mr, Speaker: As we leave this subject, I hope that everyone realises that those of us who are here now are merely transitory trustees, for this generation, of the good name of the House and that we should use language that is worthy of the dignity of this House. Even when, to take up the point of the hon. Member for Liverpool, Walton (Mr. Heifer), an hon. Member feels that he has something that he can reveal only in this House and uses our privilege to do so, right hon. and hon. Members should be careful in their choice of language.

Mr. Channon: On a point of order, Mr. Speaker. As the hon. Member who had the next Question on the Order Paper, may I suggest that it would be better to revert to the practice of hon. Members, even those with loud voices, raising points of order at the end of Question Time rather than in the middle?

Mr. Speaker: I am dependent upon the House in this matter. As a rule, when I ask hon. Members to leave a point of order to the end of Question Time, they have the courtesy to do so. However, if an hon. Member is boiling over it is understandable that he will not wish to do that, and we usually get rid of the issue quickly.

BRITISH WATERWAYS BOARD

Mr. Michael McNair-Wilson: On a different point of order, Mr. Speaker. You are probably aware that the Government have today published an important White Paper about the future of the water industry. In that White Paper the Government have set out their plans to extinguish the British Waterways Board. Is it usual that no Government Minister should make a statement to enable the House to have a preliminary opportunity to put questions to the Government about the White Paper?

Mr. Speaker: That depends upon the Minister and whether he seeks leave to make a statement to the House. I have not yet received such a request and I do not know whether one will be forthcoming later.

INFLATION (INFORMATION)

3.43 p.m.

Mr. Peter Viggers: I beg to move,

That leave be given to bring in a Bill to provide information about inflation.

It is a routine parliamentary courtesy to apologise for not following previous remarks or discussions, but I am sure that you, Mr. Speaker, will be the first to forgive me if I do not follow any of the points raised in the last 10 minutes.

My Bill is a modest measure to publicise and draw attention to the rate of inflation. During the last three years we have suffered the highest level of inflation in the developed world, with the sole exception of Italy. The current rate of inflation of 17.5 per cent. compares with much lower percentage rates in France, where it is 9.5; West Germany, 3.8: Japan, 8.6; and the United States, 6.8. At the current level of 17.5 per cent, the true value of money halves every four years‥

The present situation is particularly disturbing because Ministers appear to be incapable not only of controlling the level of inflation but of forecasting the future rate. Every one of the Chancellor's forecasts on the inflation rate over the last three years has been substantially overoptimistic, and we should ask why. The answer of course is that the Government take the view that inflation can be talked down. The Government hope that wage and price increases will be moderated if fears of inflation can be calmed. By reducing the expectation of inflation the Government hope to reduce inflation itself.

But is this talking down of inflation succeeding? It certainly has not succeeded in the past, and this week the Government's negotiations with the unions appear unpromising. The Prime Minister and the Chancellor have said that a mere fig leaf of a pay policy will not be enough but it looks as if they will not even get their fig leaf. They seem destined for full frontal failure. Is it in the public interest that we should all be soothed about inflation? Surely it is better that we should face up to inflation and ponder on its implications?

Inflation redistributes capital and income. As a general rule it favours the young against the old and the profligate


against the frugal. Above all, it redistributes money from the individual to the State. It discourages saving and it discourages planning. It develops a philosophy of "live now, pay later". This is seriously damaging to our society and way of life. But how are we to focus attention upon the vicious social pressures caused by inflation? How do we publish and advertise the damage it causes?

Let us look at the damage to savings. An investment of£100 in a building society yields interest of about£10 a year, but this is not enough to keep up with the rate of inflation, and an investor with a building society is actually worse off in real terms at the end of the year than he w4,s at the beginning. The current rate of interest on National Savings held for the full four years is 7.59 per cent., but this compares with a rate of inflation that is about 10 per cent. higher. An investment of£100 in National Savings will result in the saver having£90 in real terms at the end of one year and actually being £10 worse off in real terms. On this basis, building society deposits and National Savings are nothing less than a massive confidence trick perpetrated on a gullible and bemused public.

How can we restore sanity and honesty to the situation? My Bill suggests ways in which public attention can he focused upon inflation and its effect upon savings, and I have taken as a model the Act which prevented misleading advertisements in hire purchase agreements. The House will recall that the Advertisements (Hire Purchase) Act 1967 contained provisions which required full information to be given to a prospective customer in order to enable him to judge all the financial effects of a hire purchase transaction such as deposit, length of period of the agreement and so on.

My Bill similarly proposes that post offices and other places which advertise that they accept fixed-interest savings should carry a notice or warning to savers of the full implications of the transaction and in particular they should be told of the true rate of return on their invest-

ment after taking inflation into account. For this purpose, I suggest that the inflation rate should be based on the latest three months' figures. An advertising agency will no doubt find suitable wording, but the warning to savers might be on the lines of the warning that cigarette packets carry for smokers. The notice might read
Warning: saving can damage your wealth".

I must emphasise that my object is not to undermine and attack personal savings. My intention is to restore honesty and elementary common sense to a subject which is widely misunderstood.

The Government need to mobilise public opinion in the battle against inflation. We have all become accustomed to hearing our leaders appeal for moderation in wage demands, but such appeals have been weakened in their impact because they have been accompanied by soothing assurances about the future rate of inflation. The true, stark, unfair facts are that decent hard-working people who have planned and saved throughout their lives in order to enjoy a comfortable retirement are being systematically ruined by inflation and Parliament has a duty to do something about it.

In a democracy the right way to take action is to ensure that the facts are understood and then to build upon a platform of knowledge. The modest purpose of my Bill is to publish and advertise the effect of inflation upon savings and so mobilise public opinion on an informed basis.

Question put and agreed to.

Bill ordered to be brought in by Mr. Peter Viggers, Mr. Ralph Howell, Mr. Ian Lloyd, Rear-Admiral Morgan-Giles and Mr. T. H. H. Skeet.

>INFLATION (INFORMATION)

Mr. Peter Viggers accordingly presented a Bill to provide information about inflation: And the same was read the First time; and ordered to be read a Second time upon Friday 22nd July and to be printed. [Bill 170.]

CRIMINAL LAW BILL [Lords')

As amended (in the Standing Committee, considered.

3.52 p.m.

Sir Anthony Meyer: On a point of order, Mr. Speaker. I seek your guidance. The Long Title describes this measure as
An Act to amend the law…with respect to…the administration of criminal justice".
I had very much wished to raise certain questions in connection with the administration of criminal justice. I am seriously concerned that the administration of criminal justice needs to be amended to correct a growing tendency in magistrates' courts for certain offenders on certain charges to be treated as guilty unless they produce cast-iron proof of being innocent and for the whole concept of requiring charges to be proved beyond reasonable doubt to have gone by the board. This applies especially to shoplifting offences.
With a view to raising this issue I tabled New Clause 7. I make no complaint that it has not been selected. I understand, Mr. Speaker, that you cannot cover everything. However, I ask you to advise me how I can raise this issue in any of the debates that are to follow.

Mr. Speaker: I cannot do so at the moment. I shall have to consider whether there is any way in which I can help the hon. Gentleman.

New Clause 1

ALTERATION OF MAXIMUM PERIODS OF IMPRISONMENT IN DEFAULT OF PAYMENT OF FINES, ETC.

'For the Table in paragraph 1 of Schedule 3 to the Magistrates' Courts Act 1952 (maximum periods of imprisonment in default of payment of fines etc.) there shall be substituted the following Table:—


"TABLE


An amount not exceeding £25…
7 days


An amount exceeding £25 but not exceeding £50……
14 days


An amount exceeding £50 but not exceeding £200……
30 days


An amount exceeding £200 but not exceeding £500……
60 days


An amount exceeding £500 but not exceeding £1,000…
90 days





An amount exceeding £1,000 but not exceeding£2,500
6 months


An amount exceeding £2,500 but not exceeding£5,000
9 months


An amount exceeding £5,000
12 months.".'


—[Mr. John.]

Brought up, and read the First time.

The Minister of State, Home Office (Mr. Brynmor John): I beg to move, That the clause be read a Second time.

Mr. Speaker: With this it may be convenient to discuss the following:

New Clause 2—Power to order search of persons before Crown Court.

New Clause 9—Refusal or neglect to pay fine.

Amendment No. 85, in page 20, line 8, Clause 27, leave out subsection (3).

Amendment No. 90, in page 28, line 13, Clause 36, at end insert

'except that no term of imprisonment shall he imposed under this subsection for nonpayment of a fine or for want of sufficient distress to satisfy a fine'.

We are also to take Government Amendments Nos. 95 to 99 and Nos. 111, 144, 159, 167, 168, 170, 174, 176, 192, 193.

Mr. John: I should explain that in this formidable grouping the effective new clauses are Nos. 1 and 2 and that the effective Government amendment is No. 159.
The basic aim is threefold. First, I deal with New Clause 2, which is rather separate although it has been grouped with the other new clauses and amendments. The clause would slightly improve the enforcement of sums of money ordered to be paid at the Crown court and would offer, therefore, some small relief to magistrates' courts, which have the responsibility of enforcing Crown court orders
At present, when there is a fine or forfeited recognizance the magistrates' court has the power to search the person there present to see whether he has the sum that will enable him to pay such a fine or forfeited recognizance. At present the Crown court does not have such power. Even if the person comes before the Crown court, the matter has to be remitted downwards, with the consequent administrative problems caused there
The clause would give the Crown court this additional power. It is only


a small power, but it will in certain circumstances provide a certain minor relief to the magistrates' cour
New Clause I follows a promise that I made in Committee. I said in Committee that we would bring forward an amendment to adjust the scale of maximum periods of imprisonment to be served in default of fines. With this must be linked Amendment No. 159, which follows closely the debate in Committee when my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) played a considerable part. It concerned the problem of imprisoning fine defaulters and the consequent additional pressure on the prison servi
As I said on 30th June 1976, the number of fine defaulters was 4.1 per cent. of the total prison population. The chief concern of the members of the Committee—it was not a party issue on that occasion—was that certain people who could not afford to pay were finding themselves imprisoned. That was happening because of their lack of means. Amendment No. 159, together with New Clause I, seeks to reinforce a point made by my hon. Friend the Member for Pontypool (Mr. Abse) on Second Reading and to underline the importance of Section 44 of the Criminal Justice Act 1967, which consists of a means examinati
If the House accepts Amendment No. 159, henceforth a person will be subject to imprisonment only if he fails to pay the fine because of his wilful refusal or culpable neglect. No one will henceforth find himself imprisoned for having failed to pay a fine if he lacks the means to do
Secondly, I undertook to amend substantially the relationship of the period of imprisonment in default of payment. I undertook to bring it into line with modern day concepts. The House will see what is now proposed. It is useful to compare the proposed table with the table that now obtains. That table provides for a sentence not exceeding seven days for a fine not exceeding£2. It provides for 14 days for a fine between£2 and£5, 30 days for between£5 and£20 and 60 days for between£20 and£50. Ninety days may be given for a fine of more than£50.

Mr. Robert Kilroy-Silk: I refer to Government Amendment No. 159, which in sub-paragraph (i) states:

if the court is satisfied that the default is due to the offender's wilful refusal or culpable neglect".
As my hon. Friend will realise, that goes to the heart of New Clause 9. I ask for slightly more clarification and perhaps for an assurance. Do I take it that Amendment No. 159 would mean that all those coming before the courts who had previously been convicted and had had the penalty of a fine imposed upon them would go to prison only for refusal to pay and that no other categories are caught by the amendment?

Mr. John: I shall deal with that matter shortly. I was intending to deal with my hon. Friend's new clause separately.
I return to the scales of imprisonment for non-payment of fines. The House will see that New Clause I would provide a maximum of seven days' imprisonment to be imposed for a fine not exceeding£25 whereas the present maximum is 60 days. I believe that that will have a significant effect upon the occupancy of prisons by fine defaulters. There is no doubt that our experience and the experience of European countries is that we cannot do without the sanction of imprisonment for fine defaulters, but the primary shock is the impact of imprisonment rather than the length of imprisonment. If we keep the terms as long as they now stand, there is a considerable argument for saying that we are punishing ourselves rather than the fine defaulter. I believe that New Clause I accords with the more modern outlook now taken.
4.0 p.m.
The new clauses and amendments go a substantial way towards meeting the point made by my hon. Friend the Member for Ormskirk without some of the objections that I had and still have to his mode of dealing with the matter. My hon. Friend would have a separate offence. That would involve a decision whether the fine had been paid, a separate summons, with consequent dislocation of the police service in serving that new summons, a fresh court hearing, and so on. Where a person has failed to pay a fine—my hon. Friend said "refused" to pay a fine, but there is a difference between failure and refusal to pay a fine—he will be imprisoned only if the court is satisfied that non-payment


of the fine is due to his wilful refusal or culpable neglect. It is more than mere penury or indigence. I believe that that will meet the point that my hon. Friend has in mind.
I commend to the House the new clauses and the consequential amendments and I invite my hon. Friend not to press New Clause 9. I believe that he has got a substantial amount of what he wanted from the Government's amendments.

Mr. Walter Clegg: I welcome New Clause 2—Power to order search of persons before Crown Court. I believe that it will save a great deal of public expense and police and other time.
I agree with the Minister of State that it is essential to retain the deterrent of imprisonment to enforce the payment of fines. Anyone with practical experience of the courts knows that, without that deterrent, there would be an even longer list of unpaid fines than there is now. I do not object to Amendment No. 159. It almost follows the present practice of the courts.

Mr. Kilroy-Sink: I am grateful to my hon. Friend the Minister of State for having tabled these new clauses and amendments. I believe that they go some way towards meeting the objections that were voiced on both sides of the Committee and were also encapsulated in my New Clause 9.
I think that my hon. Friend will agree that the number of fine defaulters in our prisons at any one time is disturbingly high. That is what the Wootton Committee said as long ago as 1970. Therefore, efforts should be made at all times to prevent large numbers of people—particularly inadequate offenders—from being imprisoned because they have not the means or the wherewithal to pay their fines.
The intention behind my new clause all along was to ensure no more than that those who were unable to meet or were incapable of meeting the financial penalties imposed upon them by the courts should not subsequently find themselves in prison. I am referring specifically to vagrants, drunks and alcoholics. I hope that the Minister of State will confirm that, given their limited means, it is

unlikely that such persons will end up in Prison Department establishments in future.
In the light of what my hon. Friend said, it is my intention not to move my new clause. But taken with that new clause is Amendment No. 90. That attempts to exclude the possibility of imprisoning a parent for the non-payment of a fine originally imposed upon a child or young person.
Under the Children and Young Persons Act 1969, the courts lost the power to impose sanctions for the non-payment of fines until the offender reached the age of 17. This Bill proposes that, when a fine imposed on a juvenile is not paid, the magistrates' courts should be empowered to make an attendance centre order, to bind over the defaulter's parent or legal guardian or—this is the matter to which I specifically object—to transfer the fine originally imposed upon the juvenile offender to the parent or legal guardian. On the face of it, that may not seem unreasonable. In fact, that course of action has been advocated by many hon. Members on both sides of the House and, indeed, by numerous individuals and organisations outside.
The principal argument in favour of what the Government are proposing in the Bill is that at present magistrates are sometimes deterred from imposing fines on juveniles by the knowledge that they cannot be enforced and that increased powers of enforcement might lead to greater use of the fine which, if used sensibly, is a useful and widely appropriate non-custodial sentence.
It could also be argued that the power to transfer fines to parents might encourage them to take more responsibility for their children's actions. As a parent, I am in favour of parents taking more responsibility for the actions of their children. One problem in modern society is that too few parents take too little responsibility for too many children. There is not sufficient discipline and surveillance of their actions and perhaps not sufficient inculcation of social responsibility and a proper moral code.
On the other hand, magistrates often stress that if a fine has any value—I think that this point will be accepted by hon. Members on both sides of the House—it lies in the young person who has been


convicted of an offence and has been fined paying it himself without the possibility of evading or of passing the responsibility for meeting that fine to any other person. Yet that is what, in effect, is being proposed in the Bill.
The whole point is that the fine—the sanction—should relate directly and specifically to the individual concerned. If the imposition of a fine is to have any educative and punitive effect by bringing home to the offender the enormity of his actions, he must in practice be directly responsible for meeting it.
The Kilbrandon Report on Children and Young Persons in Scotland rejected the idea that is now enshrined in the Bill of transferring fines to parents. Kilbrandon rejected the suggestion that it would help—I suspect that this is a subsidiary motive behind the intention—to educate parents about their social responsibilities to their children. In a section headed
Parental responsibility and how it can be furthered",
the Report stated that
the practice of fining parents for their children's misdemeanours seems to be open to serious objection…The educational value, in relation to the parents, must in the circumstances be highly doubtful; and the argument that the process will indirectly be of educational value to the child we consider to be untenable.
It is a fact—I recall the Minister of State acknowledging it in Committee—that many of the most recalcitrant of our young delinquents are at odds with their parents. They are not in any practical sense, although they may be legally and theoretically, under the responsibility and guidance of their parents. Such a juvenile often suffers a distant and strained relationship, which can only be exacerbated if, having been convicted of an offence and had a fine imposed upon him, for one reason or another he does not pay the fine and it is transferred to and made the responsibility of the parents—parents who have no real control over and perhaps, though it may be difficult to understand by normal values, no real love for that child. Therefore, the transfer of responsibility for a fine can only make matters between a juvenile and his parents more difficult than they are and put an extra strain on what may already be extremely distressing social circumstances.
Such a course as is proposed would drive an even greater wedge between members of a family. The whole point of the provision should be to bind the family together with a sense of responsibility for the actions of each of its members, particularly the younger members. However, we appear to be about to drive a great wedge between members of a family, which I believe to be counterproductive to family unity.
It has one other potentially—I put it no higher than that—hazardous and damaging consequence. That is that if the juvenile who has been fined does not pay the fine, it is placed upon the shoulders of the parents or legal guardian. If the legal guardian does not care or has no time for the juvenile, or if he is fed up with the misdemeanours and misdeeds of the juvenile, is not prepared in any circumstances to be seen to accept responsibility for the juvenile's actions and is not prepared to fork out his hard-earned money to pay the fine, he will be guilty of the offence referred to in New Clause 1 and Amendment No. 159. He will be guilty of wilfully refusing to pay the fine and of culpable neglect in failing to pay it.
Those circumstances give rise to the potentially hazardous situation in which parents can be imprisoned, by a very indirect, tenuous and,I suspeet,unintended route, for the consequences of the actions of children for whom perhaps they ought to have responsibility, for whom, in legal terms, they may be reponsible, but over whom in practice they have no control.
For that reason I ask my hon. Friend to think again about this question. I know that he considered it in Committee and since then, but I still feel, in spite of his comments then and his arguments in defence of the Government's position, that this is an untenable situation which cannot lead to the kind of beneficial consequences which he and I want, and which, in the long run, will lead to far more extreme difficulties than those that he is trying to eradicate.

Mr. Nicholas Fairbairn: There is a tendency for reforms in this country to be imitated across the border. I greatly appreciate the intention of the new clauses, and I think that they are very sensible. They


are a chronic indictment of the Government's economic policy in that they contain an element of deflation in these times.
I appreciate the Minister's concept that imprisonment or the fear of it is the deterrent and that the period, however long, deters. But that concept is contradicted by the fact that the provision follows a scale. I seriously think that it goes too far to say that failure to pay a fine of up to£25 or£50 should be punishable only by seven days or 14 days imprisonment respectively because there are many people—the hon. Member for Ormskirk (Mr. Kilroy-Silk) referred to categories of vagrants, drunks and alcoholics—for whom a week in prison is just a holiday away from lying under a bridge along the Thames.
Seven days' imprisonment is a pointless term, and I think that the minimum term ought to be 30 days. I know that the matter cannot be changed at this stage, but to provide for imprisonment periods of a week and a fortnight, which are periods of the kind in which human beings think in terms of their holidays, is absurd when one can save£50 by taking a short prison term.

Mr. John Farr: I wish to refer briefly to Amendments Nos. 95 to 99. In these amendments is the Minister taking into consideration, in altering certain maximum fines which may be imposed on summary conviction, only the change in the value of money? As Clause 57 states, that will be the main or possibly the only reason in many cases which would justify a more or less automatic change in the value of the fine on summary conviction as the value of money presumably depreciates.
If the House is to adopt this proposal—and that seems a fairly sensible thing to do—is there not also a case, before putting in an automatic alteration of this nature, to take into account how the maxima laid down in this and other legislation are applied by the magistrates' courts?
4.15 p.m.
There is currently a tremendous variation in this area. For some groups of offences the magistrates' courts are imposing almost the maxima at present laid down by Parliament. For other offences,

notably under the Firearms Act 1968, some of which are very serious offences, on summary prosecutions the magistrates' courts regularly impose penalties on average of between 7 per cent. and 9 per cent. of the maxima laid down by Parliament. So while I am not quarrelling with the suggestion, which in these days of roaring inflation is an eminently sensible one, I believe that the maximum penalties should be automatically reviewed in this way. Surely now and again some other factor should be fed into the equation. We should consider how the magistrates' courts are dealing with particular offences in interpreting the wishes of Parliament. Some assessment should be made of that matter.

Mr. John: Three basic points have been made. The first was made by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn). If he believes that seven days' imprisonment for non-payment of a fine is a holiday from sleeping under bridges, a fortiori he must accept that 14 days would be an even better reward. Even on his argument there is the dilemma that if people prefer to go to prison than to pay a fine, that is not necessarily a penalty. But in future the effect of Amendment No. 159 will be to make sure that that is done only where there is wilful refusal or culpable neglect.
The second point was raised by the hon. Member for Harborough (Mr. Farr). There are two distinct aspects. The first, on Clause 57, is the Secretary of State's rule-making power to take account of changes in the value of money and to do only that. The aim is to avoid the sort of falling behind which occurs between criminal justice Bills and the desperate catching up that is then necessary. If other factors have to be taken into account, it is right and proper that they should be enshrined in Acts of Parliament rather than in the Secretary of State's power to make an order. Therefore, the other factors of which the hon. Member for Harborough has spoken could be incorporated in Acts about which it would not fall to the Home Secretary to make orders.
My hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) said that we had had debates about the issues involved in the Kilbrandon Report and various


other matters. Clause 36 is not as automatic as he suggests. It transfers the juvenile's fines to the parent. This can be done only upon certain strict conditions. In particular, the court must be satisfied that it is reasonable to do it. It would not be reasonable to transfer to the alienated parent the responsibility for paying the juvenile's fine. Such transfer could be done only when there was culpable neglect on the part of the juvenile to pay the fine when he could afford to do so. In the present circumstances there must be culpable neglect or wilful refusal by the parent to pay the fine.
Many fail-safe devices operate before the aspect that my hon. Friend has described conies into effect. He is not predicating a real possibility.

Mr. Kilroy-Silk: May I intervene on an earlier point? New Clause I has a nice, neat tariff and this brings me to the point about hoildays made by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn). Does my hon. Friend think that it is reasonable that the taxpayer should have to pay£80 to keep someone in prison for seven days simply because of failure to pay a£25 fine? If we take another instance, of a fine of up to£200, on the Home Office figures that will cost us£320, without the cost of police and court time. Surely this is one sense in which we have not got our priorities right in terms of what is important in the context of the fine and the rather larger, blunter and more socially expensive instrument that we are using to deal with a relatively small problem.

Mr. John: On any showing, it must be a great deal more satisfactory than terms of imprisonment of seven days for fines not exceeding£2, which is the present basis. We are more than compensating for the fall in the value of money since 1957, and we have gone a great deal of the way to reduce the prison population in the fine defaulter category. Therefore, I hope that the House will find all this satisfactory.

Mr. Andrew F. Bennett: May I press my hon. Friend in terms of New Clause 2? Is there any duty imposed on the court to make sure that someone leaving the court having had money confiscated from him has

sufficient money to get him home and to sustain himself until he receives more money?

Mr. John: As I understand the situation, that will be taken into account. At the moment, the question is the power to search. It is not necessarily the power to confiscate. The court must then use its judgment on the matter.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 2

POWER TO ORDER SEARCH OF PERSONS BEFORE CROWN COURT

'After section 34 of the Powers of Criminal Courts Act 1973 there shall be inserted—

34A.—(1) Where—

(a) the Crown Court imposes a fine on a person or forfeits his recognizance;
(b) the Crown Court makes against a person any such order as is mentioned in paragraphs 3, 4 or 9 of Schedule 9 to the Administration of Justice Act 1970 (orders for the payment of costs);
(c) the Crown Court makes against a person any such order as is mentioned in paragraph 12 of that Schedule (fines etc. payable by parents or guardians) other than an order under section 35 of this Act; or
(d) on the determination of an appeal brought by a person under section 83 of the Magistrates' Courts Act 1952 a sum is payable by him, whether by virtue of an order of the Crown Court or by virtue of a conviction or order of the magistrates' court against whose decision the appeal was brought,
then, if that person is before it, the Crown Court may order him to be searched.

(2) Any money found on a person in a search under this section may be applied, unless the court otherwise directs, towards payment of the fine or other sum payable by him; and the balance, if any, shall be returned to him.".'—[Mr. John.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

AMENDMENTS OF OBSCENE PUBLICATIONS ACT 1959 WITH RESPECT TO CINEMA TOGRAPH EXHIBITIONS

'(1) In the proviso to section 1(3) of the Obscene Publications Act 1959 (which excludes from the scope of that Act anything done in the course of a cinematograph exhibition taking place otherwise than in a private house to which the public are not admitted and


anything done in the course of television or sound broadcasting) the words from "a cinematograph exhibition" to "in the course of" shall be omitted.

(2) In section 2 of that Act (prohibition of publication of obscene matter) at the end of subsection (3) there shall be inserted the following subsection:—


"(3A) Proceedings for an offence under this section shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the relevant publication or the only other publication which followed or could reasonably have been expected to follow from the relevant publication took place or (as the case may be) was to take place in the course of a cinematograph exhibition; and in this subsection 'the relevant publication' means—

(a) in the case of any proceedings under this section for publishing an obscene article, the publication in respect of which the defendant would be charged if the proceedings were brought; and
(b) in the case of any proceedings under this section for having an obscene article for publication for gain, the publication which, if the proceedings were brought, the defendant would be alleged to have had in contemplation.".

(3) In section 2 of that Act after subsection (4) there shall be inserted the following subsection:—


"(4A) Without prejudice to subsection (4) above, a person shall not be proceeded against for an offence at common law—

(a) in respect of a cinematograph exhibition or anything said or done in the course of a cinematograph exhibition, where it is of the essence of the common law offence that the exhibition or as the case may be, what was said or done was obscene, indecent, offensive, disgusting or injurious to morality; or
(b) in respect of an agreement to give a cinematograph exhibition or to cause anything to be said or done in the course of such an exhibition where the common law offence consists of conspiring to corrupt public morals or to do any act contrary to public moral or decency.".

(4) At the end of section 2 of that Act there shall be added the following subsection:—
(7) In this section 'cinematograph exhibition means an exhibition of moving pictures produced on a screen by means which include the projection of light.".

(5) In section 3 of that Act (which among other things makes provision for the forfeiture of obscene articles kept for publication for gain) at the beginning of subsection (3) there shall be inserted the words "Subject to subsection (3A) of this section" and at the end of that subsection there shall be inserted the following subsection:—
(3A) Without prejudice to the duty of a court to make an order for the forfeiture of an article where section 1(4) of the

Obscene Publications Act 1964 applies (orders made on conviction), in a case where by virtue of subsection (3A) of section 2 of this Act proceedings under the said section 2 for having an article for publication for gain could not be instituted except by or with the consent of the Director of Public Prosecutions, no order for the forfeiture of the article shall be made under this section unless the warrant under which the article was seized was issued on an information laid by or on behalf of the Director of Public Prosecutions.".

(6) In section 4 of that Act (defence of public good) at the beginning of subsection (1) there shall be inserted the words "Subject to subsection (1A) of this section" and at the end of that subsection there shall he inserted the following subsection:—
(1A) Subsection (1) of this section shall not apply where the article in question is a moving picture film or soundtrack, but— 
(a) a person shall not be convicted of an offence against section 2 of this Act in relation to any such film or soundtrack, and
(b) an order for forfeiture of any such film or soundtrack shall not be made under section 3 of this Act,
if it is proved that publication of the film or soundtrack is justified as being for the public good on the ground that it is in the interests of drama, opera, ballet or any other art, or of literature or learning.".

(7) At the end of section 4 of that Act there shall be added the following subsection:—
(3) In this section 'moving picture soundtrack' means any sound record designed for playing with a moving picture film, whether incorporated with the film or not.".'.—[Mr. John.]

Brought up, and read the First time.

Mr. John: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine): With this, we may take Government Amendment No. 171.

Mr. John: This again fulfils an undertaking which the Government gave at the instance of expressions of concern on both sides of the Committee relating to the interim period between the setting up of the committee on obscenity and its report and the position of the film industry in the meantime. It emerged strongly that there was concern that the film industry should not be unduly hampered and restricted in the meantime, and the clause might be described as a holding operation. As the right hon. and learned Member for Wimbledon (Sir Mr. Havers) will recall, that was the undertaking that I gave.
The clause follows broadly the Law Commission's proposed form for making films subject to the Obscene Publications Act, but it is not entirely abolishing the common law offences. Nevertheless, it provides in subsection (3) that proceedings at common law shall not lie against a cinematograph exhibition, in that it follows the Theatres Act.
In subsections (2) and (5), there are provisions to forestall frivolous or vexatious proceedings in that the consent of the Director is now required. It also departs from the Law Commission's draft in subsection (2) dealing with private showings, and so on. That is a very difficult matter to sort out, and it has not been possible to do so in the short period which has obtained between the Committee stage and Report. In view of that, we decided that it would be better to adopt the more simple course of requiring the Director's consent generally rather than trying to draw a more complex line.
The second modification recommended by the Law Commission is in subsection (6), which provides in respect of cinematograph exhibitions a different form of "public good" defence than that applying to publications generally. The revised form follows the Theatres Act, to which it is more appropriate.
There is one feature of the Law Commission's proposals which is not adopted in the clause. It is the exemption for performances in private houses so long as no person under 16 is present and no charge is made. This is a wider point than the one which mainly concerned the Committee. It is for the new working party on obscenity which has been set up by my right hon. Friend to consider that point. I hope that the House will agree to await its report before dealing with it. My right hon. Friend has today published his Answer to a Parliamentary Question indicating to the House the total composition of the committee.

Mr. Emlyn Hoeson: The effect of this clause will be to amend the Obscene Publications Act 1959 to cover films, public and private, which were specifically excluded from the Act when it was passed.
The Minister referred to the defence of "public good" which is provided virtually in the same terms as that pro-

vided in the Theatres Act 1968 and which is slightly narrower in scope than that in Section 4 of the Obscene Publications Act.
Part III of the Law Commission's Report, upon which Parts I and II of the Bill are based, dealt with conspiracies relating to public morals and decency in particular and the common law offences relating to the same subjects in general. In page 123 of that report appear the summary recommendations of the Commission for reform of the law in this area, including an amendment on the lines of the proposed clause.
But the Law Commission also proposed the abolition of common law conspiracy in this area, which is retained by Clause 5(3) of the Bill as it now stands. As I understand it, the reason given by the Government for thus going against the recommendations of the Law Commission is that the subjects of obscenity and morality as a whole should be looked at afresh by a departmental committee under the chairmanship of Sir Bernard Williams and that, for the time being, the old common law should be retained as a safety net.
With this new clause, the Government virtually seek to eat their cake and have it by introducing one of the major recommendations of the Law Commission for reform in this area.
In Amendment No. 19, which is to be discussed later, it is again proposed that the provisions of Clause 5(3) be struck out. Do the Government intend to support that amendment? If they do not, how do they seek to justify its retention alongside piecemeal introduction of the Law Commission's Report on obscenity?
In my view, the Government's approach is wrong. They should have either adopted the Law Commission's recommendation or dropped Clause 5(3). I should like to know their intention in that regard.

Mr. Christopher Price: Although. I did not serve on the Standing Committee, I participated in a delegation to my hon. Friend the Minister of State about this issue before the Bill was published with representatives of the Defence of Literature and the Arts Society.
Although the distance that the Government have gone is not nearly as far as we had wished, and although I agree with the hon. and learned Member for Montgomery (Mr. Hooson) that piecemeal approaches to Law Commission Reports of this kind are not a satisfactory way of proceeding, I should like substantially to thank my hon. Friend for the distance that he has been able to go.
The protection of the Director of Public Prosecutions against frivolous prosecutions in this area is very important. It will eliminate some of the private prosecutions by Mr. Raymond Blackburn which we have had in the past and which have caused the public purse enormous expense, a number of them having ended in acquittal.
In passing I might say that I wish only that we had the Director's fiat against prosecutions for blasphemous libel, because we could have been spared some of the nonsense that we have experienced only this week. The provisions of the new clause could be put at nullity by the police acting with the Post Office. That is because under the Post Office Acts it is possible to prosecute in connection with a film which it is legal to show and about which the Director might decide there is no case. However, it might be illegal to import that film and to send it through the post once it is in this country.
4.30 p.m.
There have been some ridiculous cases of that kind where the Government as the Home Office have taken one attitude and the Government in their capacity of being responsible for Customs and Excise and the transmission of material through the post have taken another. I am sorry that the new clause about a public prosecutor has not been accepted because it would have eliminated that sort of nonsense. May we have an assurance that these nonsenses will not take place in the future?
Can the Minister say when the Williams working party will complete its considerations? I shall go on talking for a minute or two so that messages can be passed and the Minister can absorb them. May we have an estimate of when the Williams Committee will report so that we know when we can next take action finally to

clear up the whole business of obscenity as it relates to films and other matters?
We have to put on record that what the Government are doing now represents a temporary solution. The sooner we have a clear law on the issue, the better. We have not yet got that. But with a sensible Attorney-General and an intelligent Director of Public Prosecutions we shall have moved a little further forward.

Sir Michael Havers: I am grateful to the Government for their response to the proposals that we made in Committee. There are two, and perhaps three, advantages of the new clause. First, we shall now be able to brim., cinema clubs into the ambit of the criminal law. Secondly, we shall be able to bring the distributors, who scoop all the money, into the ambit of the criminal law. We shall have one law of obscenity to cover each area. It is essential that the law is revised as soon as possible.
I am pleased that the composition of the Williams Committee has been announced. It is a long time since the setting up of the committee was announced in another place. I appreciate the Home Secretary's difficulties in selecting suitable members of the committee. I hope that he will impress upon them the importance of making an early report.
Many criticisms have been made of the 1959 Act. Lord Widgery said:
Until we get a satisfactory definition of obscenity…".
The Master of the Rolls said that the law had "misfired". Gordon Slynn for the Attorney-General said that it was "virtually unworkable". Lord Justice Philimore said it involved
just the sort of test a jury shrinks from applying.
Lord Wilberforce talked of
the illogical and unscientific character of the Act".
If we are to have one Act that applies to all materials, it must work. I do not want to rock the boat, but the new clause is not exactly in the terms that we proposed. Prosecutions are to be restricted to the Director of Public Prosecutions. I am not arguing the case for private prosecutions, but I am talking of the impossibility of the DPP carrying out the task imposed upon him. Not only will he have


to decide whether to prosecute in connection with films intended for cinemas and clubs but, because of the way in which the new clause is drafted, he or his assistant will have to examine all the 8mm films that might be seized. That is an impossible task. I do not believe that it was intended by the draftsmen. The Law Commission intended that the DPP's consent should be obtained but the present drafting places upon him the burden of examining every 8mm film seized.
The new clause does not provide for the forfeiture of blue films unless a warrant is obtained. The police often know that there is a warehouse containing dirty, obscene material, such as magazines. They do not know definitely whether any films are included. In that case they have an ordinary search warrant, but under the new clause that would not give them the right to confiscate the films. Every time the police suspected that there might be some films they would have to go to the Director's office and obtain the Director's official backing for the operation. That would bring the office to a halt. It cannot be done. That is why our suggested amendment was sensible. The Government's provision would put the Director and his staff into a position where they would not be able to cope.
There is still time for the necessary amendment to be made in another place. I hope that the Government, because they have followed our suggestion and put cinema films within the scope of the obscenity law, will be able to devise a method that will save the Director from dealing with all the 8mm films. Apart from that, we welcome the new clause.

Mr. Michael McNair-Wilson: I rise as an hon. Member with no legal experience but as one who is concerned about the kind of films that are being viewed widely throughout the capital and other cities, and I rise to ask the Minister of State this question: as a result of the change contained in this clause, are we likely to see a rash of more indecent films than would otherwise occur if we left the law as it is, where the public have the right to take out a prosecution, frivolous or otherwise, if they feel that their standards have been affronted?
I understand from something that the Home Secretary said that the setting up of Professor Williams' committee, since it was to have such wide-ranging powers to look at the whole question of obscenity laws as they affect publications and films, meant that the Government would not introduce fresh legislation until the committee had reported and for my part I hope it reports quickly. If that is correct, may I assume that the new clause is an interim measure and that the Government are using it as a device to get over a legal anomaly? Am I right to assume that the Government do not intend it to become the basis for the laws that will cover films shown in this country?
May I also assume that the necessity of obtaining the permission of the DPP is not to become a barrier to the citizen's absolute right under common law to express his doubt about the legality of what is presented to him? I hope that is the case because some of us who have watched this subject over a number of years have not been particularly impressed by the willingness of the Director of Public Prosecutions to take up cases brought to him or to call the sort of expert witnesses who, if they had been called, might have produced very different results in the courts.
I hope that the Minister of State will convey to the Director of Public Prosecutions the doubt and concern that exists not just in my mind but in the minds of many people who wonder how it is that standards seem to slip progressively month by month. We grow weary of being told that everything that is available to be seen in cinemas or read in bookshops is for our good, and that we are prudish fuddy-duddies if we take exception to the affront to public decency that the displays outside cinemas and bookshops clearly constitute.
I now turn to the very contentious expression "the public good". I wonder whether any hon. Member could give an absolute definition of the public good. Does the public good mean that we should lower the moral standards by which we have been brought up? Does it mean that we should regard promiscuity, wife-swapping, homosexuality, rape and violence as being somehow


to our benefit? If that is so, I suspect that the Director of Public Prosecutions will look at the Bill and pigeon-hole it because he will regard it as something with which he will not need to busy himself.
I hope that this is purely an interim measure, because it seems that the Government are dodging behind the Director of Public Prosecutions and dodging all the difficulties involved in this most contentious subject until such time as Professor Williams reports. I hope that the Minister of State can say when he is likely to report.
What rôle does the Minister now see for the British Board of Film Censors? The hon. Gentleman answered an Adjournment debate in reply to his hon. Friend the Member for Keighley (Mr. Cryer) on 22nd July 1976, when he made it fairly clear that he was opposed to the concept of central control of matters of film censorship. He did not think that the very sensible proposals put forward by his hon. Friend for a legal status for the Board would meet the concern about the quality of films shown to the general public. But surely the effect of this clause is to create the same sort of central control as that against which the Minister of State appeared to be turning his face.
The Minister of State is shaking his head at me, as if to suggest that the Director of Public Prosecutions will be able to make his judgments, presumably on some sort of regional basis if he can divide his mind so successfully. But surely the clause means that one office will now have the power to say whether a prosecution should be mounted either in the metropolis or in the furthest parts of the United Kingdom. That seems to me—at least in legal terms—to impose some sort of central control. I am sorry that the hon. Gentleman turned his mind away from the suggestion made by his hon. Friend.
4.45 p.m.
I believe that the British Board of Film Censors has done a remarkable job in laying down guidelines which have ensured that those who went to the cinema saw what was worth seeing. I have always felt that the Board could have become much more effective. However, the Minister of State does not appear to want that.
I ask the Minister of State once again to tell the House that in his view this clause will not become a licence for a further lowering of the standards of public decency, at least in terms of the films shown in our cinemas, and that he will try to argue that there is such a thing as the public good which will not further damage contemporary morality or the moral standards of this Christian nation.

Mr. John: The debate has divided itself into very differing expressions of view. I shall try to respond to each point in turn.
I say to the right hon. and learned Member for Wimbledon (Sir M. Havers) that I do not believe that his point about the consent of the Director of Public Prosecutions is correct, in view of lines 9 to 12 of the proposed new clause. However, I undertake to look at this clause again before the Bill goes to another place. The new clause was a response to the Committee and I should therefore be unhappy if it did not respond accurately to what the Committee felt on this matter.
The hon. and learned Member for Mongomery (Mr. Hooson) is also wrong. We are following the principle recommended by the Law Commission. We are repealing the common law as soon as it is replaced by statutory provision. If the hon. and learned Gentleman looks at the new subsections (3A) and (4A) he will see that that is the effect.
The hon. Member for Newbury (Mr. McNair-Wilson) asked about the flood of new films and so on. In my view this clause will not alter the situation. It does not serve as a conduit pipe leading to the situation that he wants. I have made it clear that this is an interim provision, not a generalised matter. It is because of dissatisfaction, for example with the state of the statute law on this subject that my right hon. Friend the Secretary of State has set up the inquiry into obscenity. I hope that it reports as soon as possible, but, since it is clear that more people are able to say what is wrong with the present law than to say what should replace it—that applies to both sides of the argument—I have no illusion about the fact that it will have a difficult task in coming to conclusions.
On the subject of the British Board of Film Censors and local licensing authorities, I can give an assurance that no change whatever is made in the status of


the Board. Film licensing is one of the matters to be considered by the committee on obscenity. In the meantime we have not altered the present situation, apart from making the film industry come under the Obscene Publications Act.
My hon. Friend the Member for Lewisham, West (Mr. Price) and I have discussed this on two or three occasions at my office. We have tried, as a temporary measure, to remove a weakness or an exposure to criticism of one part of the industry. We are dealing with a wider question. I hope that what has been said in the debate will be noted by the new Director of Public Prosecutions. I must reject the strictures of the hon. Member for Newbury on the Director. Directors of Public Prosecution are very honourable men, zealous to guard the law, and the new Director is an outstandingly able man. I do not believe that any of the fears that the hon. Gentleman expressed about certain areas will come about.
The House can pass this clause safe in the knowledge that it protects a particular weakness while the committee on obscenity is examining the matter. I hope that the committee will complete its investigations as soon as possible.

Mr. Christopher Price: My hon. Friend was not able to respond to me about the possible impact of the various laws covering the Customs and Excise and the Post Office after the change in the law made here. Will he undertake to consider the matter before the Bill goes to another place, to see whether there could be a great anomaly in the law which it would be possible to remove? Will he keep an open mind on the matter and see whether he might be able to straighten it out?

Mr. John: I shall keep an open mind.

Sir M. Havers: I am grateful to the Minister for what he said about examining the matter again. I very much hope that what he said is right, because I am sure that it is nobody's intention to overload the Department of the Director of Public Prosecutions. I also hope that the hon. Gentleman will examine my second point about forfeiture, because that is very difficult.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 4

PRISON SENTENCE PARTLY SERVED AND PARTLY SUSPENDED

'46A.—(1) Where a court passes on an adult a sentence of imprisonment for a term of not less than six months and not more than two years, it may order that, after he has served part of the sentence in prison, the remainder of it shall be held in suspense.

(2) The part to be held in suspense shall he not more than three quarters and not less than one quarter of the whole term, and the offender shall not be required to serve that part unless it is restored under subsection (3) below; and this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection.

(3) If at any time after the making of the order he is convicted of an offence punishable with imprisonment and committed during the whole period of the original sentence, then (subject to subsection (4) below) a court which is competent under this subsection may restore the part of the sentence held in suspense and order him to serve it.

(4) If a court, considering the offender's case with a view to exercising the powers of subsection (3), is of opinion that (in view of all the circumstances, including the facts of the subsequent offence) it would be unjust fully to restore the part of the sentence held in suspense, it shall either restore a lesser part or declare, with reasons given, its decision to make no order under the subsection.

(5) Where a court exercises those powers, it may direct that the restored part of the original sentence is to take effect as a term to be served either immediately on the expiration of another term of imprisonment passed on the offender by that or another court.

(6) "Adult" in this section means a person who has attained the age of twenty-one; and "the whole period" of a sentence is the time which the offender would have had to serve in prison if the sentence has been passed without an order under subsection (1) and he had no remission under section 25(1) of the Prison Act 1952 (industry and good conduct in prison).

(7) Schedule (Matters ancillary to section 46A) to this Act has effect with respect to procedural, sentencing and miscellaneous matters ancillary to those dealt with above in this section, including in particular the courts which are competent under subsection (3).

(8) This section and paragraphs 1 to 6 of Schedule (Matters ancillary to section 46A) and the Powers of Criminal Courts Act 1973 shall be construed and have effect as if this section and those paragraphs of the Schedule were contained in that Act.'.—[Mr. John.]

Brought up, and read the First time.

Mr. John: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this we are also to discuss New Clause 10—Reduction of sentence following plea of guilty—New Clause 11—Suspended sentences of imprisonment—and Government Amendments Nos. 119 and 124.

Mr. John: The new clause deals with a matter upon which we agreed in Committee and which was considered before the Committee stage. I believe that New Clause 4 and the new schedule contained in Amendment No. 124 give effect to the Committee's wishes.
In Committee we discussed the fact that although there were custodial sentences and fully suspended sentences there was no partial suspension so that a person could spend some time in prison. It is the belief of most modern criminologists that the fact of imprisonment is of itself the greatest lesson, and that we should not unnecessarily prolong the imprisonment with the result that the local prisons are overcrowded with the relatively minor offenders at the bottom end of the scale.
I welcome the fact that the Opposition supported this change. However, whilst I am very grateful for the support of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) and for the amendment he moved in Committee, I think that he will acknowledge that the impression that the clause was purely the Opposition's brain child is not correct. The Advisory Council on the Penal System and others have been discussing this matter.

Mr. Patrick Mayhew: indicated assent.

Mr. John: I am glad to see that the hon. and learned Gentleman fairly acknowledges that fact. I am also glad that he was, as it were, the midwife of this concept's coming into law.
The sentencing power given by the clause differs from full suspension in several important ways. The most obvious is that the first portion of the sentence is spent in prison. Secondly, partial suspension will not be available for those under 21. At present, young prisoners under 21 are released on licence, under the terms of which they may be recalled to prison. It would have been cumbersome, certainly in the time avail-

able, to try to fit the new arrangements in with the existing arrangements for the licensing of young prisoners. I believe that it is better to have such a provision on the statute book than to miss the boat entirely when there is already a system of licensing which helps the young prisoner.
Another difference is that the sentence may be suspended only for its nominal length, whereas a fully suspended sentence may be suspended for longer than the nominal length. For example, a sentence of one year's imprisonment suspended for two years can be imposed. That will not be so with this form of partial suspension.
The new sentence also differs in that there will be no power for courts to make a supervision order on the suspended portion of the sentence. Partial suspension differs from full suspension precisely because the experience of prison should be sufficient to prevent re-offence.

Mr. Edward Gardner: As I understand it, as there will be no power for a supervision order to be applied to the new sentence, Section 23 of the Powers of Criminal Courts Act will not apply. There was a recommendation in the Younger Report in 1974 that a new order should be created, known as the custody and control order, which should apply to juvenile offenders only. That had great merits which the new clause appears to copy. Would it not have been possible to extend to adult offenders the recommendations of the Younger Report, which were intended for those between 17 and 21?

Mr. John: I believe not. I shall consider the matter before the Bill goes to the other place, but I do not promise that that can be done. One of the problems about the custody and control order is its public expenditure implications. The hon. and learned Gentleman will know that we are undertaking some work on the question of the generic sentence, but I cannot pretend that in the time available we can go wholly towards what he is now advocating.
Fears have been expressed that the new form of sentence will lead not to a diminution in the prison population but to an expansion. I strongly believe


that the opposite wall be true. The sentence should be used not to replace the fully suspended sentence but to replace the fully custodial sentence—in other words, to replace longer terms of imprisonment rather than to replace the fully suspended sentence with partial imprisonment and partial suspension. I hope that the courts will use their powers in that way.
The courts are being given maximum flexibility in the type of sentence they may pass, and I hope that they will use it in such a way that the prison population, which is, alas, too high, will be reduced without a significant diminution of the deterrent effect.

Mr. W. R. Rees-Davies: Did the hon. Gentleman and his colleagues, including the Home Secretary, consider the person whose sentence was suspended being put on some form of probation during the period in question? For example, did they consider that where it was decided to give a man a short period in prison, with suspension thereafter, it might be worth while also to take the power to have him made the subject of a probation order for the later period, and thereby keep some control over him?

Mr. John: Consideration was given to that. What influenced us against it was the belief inherent in the whole concept of a partially suspended sentence—that the short taste of imprisonment will prevent re-offence, certainly for the period of the sentence, and will be a sufficient deterrent without subsequent expensive supervision. It is a matter on which we must make a judgment, and I believe that our judgment will be vindicated.

Mr. Leo Abse: As a member of the Younger Committee, I appreciate the difficulties that my hon. Friend mentioned. But am I correct in understanding that the clause in no way impinges on young people?

Mr. John: No.

Mr. Abse: Nothing is being done, then, to implement the Younger Report in regard to young people. I appreciate the difficulties with adult offenders, but is it not a little dismaying, now that we are beginning to think on the lines of the Younger Report, that nothing is

being done for young people by bringing in a custody and control order?

5.0 p.m.

Mr. John: I draw a sharp distinction between my hon. Friend's statement that nothing is being done and my statement that nothing is being done in the new clause. I explained that as far as possible the Home Office is considering the Younger Report and how it may be brought into effect, without significant public expenditure implications, at some time in the future. But, because of the difficulty of fitting in partial suspension with the licensing system for young adults, it has proved impossible wholly to reconcile the two aspects in the time available.
I was going on to deal with New Clause 10, which will be moved by the hon. and learned Member for Royal Tunbridge Wells. I opposed it in Committee and I propose to advise my hon. Friends to oppose it again.

Mr. Mayhew: We greatly welcome what the Minister of State has done in accepting the principle, at any rate, of our proposal in Standing Committee concerning the partially suspended sentence, which is the subject of New Clause 4. We are grateful to him for the generous things he has said about the part that we played in it, whether it was as brain-father or midwife. At any rate, we thought that the Bill had a large gap in regard to partial suspension of sentence which ought to be filled, and we are very glad that the Minister of State has filled it.
New Clause 4 as formulated is a great deal more comprehensible than the form that we were able to achieve in our amendment in Standing Committee. We see this as an additional weapon in the armoury that the courts can bring to bear in the fight against crime.
The Criminal Justice Act 1967, which introduced the suspended sentence, has been something of a disappointment, largely because—I think it is generally agreed—a great many people who get a suspended sentence think that they have got away with it because the sentence has to be wholly suspended, as the Minister of State has explained. What is worse is that many of their friends feel that they have entirely got away with it.


The fact that an already determined sentence is hanging over someone if he goes wrong again is not really seen to constitute much of a punishment or much of a deterrent.
But if the courts will now be able to pass a sentence appropriate to the gravity of the offence which also takes into account the circumstances of the offender, I believe that the court will be able to give a short, sharp, and, I hope, nasty taste of prison to an offender, and that will linger on and be of some useful effect before the offender has had time to become acclimatised to prison. That is the virtue of the new clause.
It is important that it should be seen not as providing a soft option but as providing an option that will enable the courts to deal more severely than they often feel able to do now, with people who need to have the deterrence of a taste of prison at what is relatively the outset of their criminal experience. I believe that it offers a very good chance of ensuring that it will be the offender's last experience of crime.
This is entirely a matter for the prison authorities, but I hope that it will be possible for them to arrange for a rather more stringent regime in the case of someone who has to serve only a few weeks or possibly a few months of a sentence actually in prison, as provided in the new clause. I hope that it is part of the object of the new clause to ensure that the recollection of a short period in prison will remain as a very unpleasant one. We therefore congratulate the Government in accepting our suggestion.
We are rather sorry, however, that there is no provision in the clause for supervision once the suspended part of the sentence has been embarked upon. There is provision for supervision to go with a fully suspended sentence under the existing legislation, and it may well be that that can be remitted at a later stage. I believe that supervision following release from custody will be desirable in cases such as this. We hope that the public will recognise the purposes for which the new clause is provided and that the court will make use of it.
Concerning New Clause 10, I was very sorry to hear that the Minister of State is not prepared to adopt any more con-

structive a course than he was in Standing Committee. I had hoped that he would apply his equally discriminating eye to this proposal as he did to New Clause 4.
The purpose of New Clause 10 is to make open and certain what at present is overt and uncertain. I am referring to the practice of rewarding a plea of guilty in a criminal case with a reduction of sentence. It is a universal practice, but the reduction that is made hardly ever explicit so that it is not possible to spell out exactly how much has been knocked off a sentence.
This desirable practice—as I think everyone with personal experience will agree—to some extent secures a reduction of public time and expense in the trial of completely unmeritorious cases which have no more than an outside hope of ending up in acquittal but which take place because it is not unheard of for a jury to come in with an eccentric or even a perverse verdict of not guilty. A great deal of public time and money is spent while those cases wend their weary and expensive way, week after week and sometimes month after month, to the benefit of no one but my learned Friends and myself.
I spend much of my time in the courts, as do many of my colleagues, in trying to make sense out of laws passed by Parliament and in trying to cut down the time that cases take to be litigated. This is a very good example of what we can do in this House. If we make open and quantifiable, in the terms of the new clause, what at the moment is universal but uncertain, there will be a far greater chance of the guilty man not deciding to take his chance but saying that he will settle for 25 per cent. off the tariff sentence to be awarded.
I believe that that is desirable because it represents a sensible bargain in the public interest and in the interest of justice. It is sensible because we avoid these immensely long and expensive trials. But the advantage to the public which is represented by this universal practice—it really is universal—is not sufficiently exploited. The reason for this is that no one can be sure how much he has had knocked off his sentence, or how much he will have knocked off it.
If one is advising a client one can only say "You can be sure that you will get


something off." If be client asks "How much?", the answer has to be "I cannot tell you." After a sentence one still cannot tell an offender how much has been knocked off it. The purpose of the amendment is to make it abundantly clear—

Mr. Ian Mikardo: There are also cases, of course, in which a defendant is induced to plead guilty on the promise that it will get him a reduced sentence, and then he gets nothing at all knocked off his sentence.

Mr. Mayhew: I do not think that is the case, but if it is the new clause would secure that that could never possibly occur. By administrative action, on a plea of guilty it would automatically follow that there would be a 25 per cent. reduction in the sentence. I do not accept that what the hon. Gentleman referred to actually happens. But if it did happen through some miscarriage of justice, it would be overcome by the terms of the new clause.

Mr. George Cunningham: Are not we running into the difficulty that we have with garages? We are told by a garage what is being knocked off the price of petrol, but we are not told the price from which the reduction is made. I suggest that it would still be possible for a court to undo the suggested provision.

Mr. Mayhew: First, this is a universal practice; secondly, it is desirable. It is right that the courts should reward a plea of guilty—in the public interest and the interests of justice. I could understand it if those who oppose the new clause put down an amendment to make any reduction of sentence on a plea of guilty unlawful, but I have met no one who wants to go that far.

Mr. Bruce Douglas-Mann: In a case in which there was a doubt on a point of law—to take the example of the blasphemous libel case or the DPP v. Shaw, where the defendant pleaded not guilty because he did not believe that what he had done was an offence—under this proposal, the defendant would get a third more sentence.

Mr. Mayhew: The hon. Gentleman anticipates my point, that where a defence

is maintained in good faith in the belief that a point of law is involved, this provision will not apply. But what is often said in opposition to this idea is that it penalises someone who pleads not guilty. That is not so, because the man who pleads not guilty and is then convicted gets the "tariff" sentence at the end of the day. The margins are imprecise, but we know that there is a tariff for each type of offence.
All institutions are mortal, but if a sentence is outside the tariff, the case goes to the Court of Appeal and may be reduced—sometimes too much, perhaps. One must trust the judiciary, bearing in mind that all these institutions are staffed by mortals and therefore will make mistakes, as we do. But I hope that hon. Members will not argue that we cannot trust the judges to give effect to the will of Parliament. They loyally do their best to follow Parliament's intentions, often with absurd results—vide, for example, Section 3 of the Criminal Justice Act 1961, which was removed in another place but unhappily restored in Committee in this House. I should have had more to say about that if a later amendment had been selected. We can trust the judges in this matter.
The amendment seeks only to make open and measurable what is universal but not measurable, vie shall thereby get a better bargain in the interests of the public and of justice and many fewer cases will go to the inevitable conclusion of a finding of guilt after weeks and weeks and the expenditure of thousands of pounds of public money. That will be a useful improvement to the practice of the criminal law.
I hope that all hon. Members will recognise this as a genuine attempt to speed up criminal cases—not at the expense of fairness and justice and not adding to the risk of undue pressure on someone to plead guilty who is innocent, but simply to bring into the open something which is universal and to get the best for the public from the present bargaining position.
I should add that we do not propose to move New Clause 11, because New Clause 4 adequately represents our intentions.

Mr. Percy Grieve: I, too, welcome New Clause 4. The institution into law of the partially suspended sentence will increase the desirable flexibility and discretion of the courts. I congratulate my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) on the part that he has played.
Sentencing is one of the greatest problems for those who hold judicial office. There is considerable difficulty in balancing the protection of society and the rights of society against the sometimes wholly distressing mitigating circumstances of a prisoner. Judges deal with this difficulty every day, allowing for the human element, with justice and mercy. Those who rush to condemn judges for particular sentences should bear that in mind. Unless one has sat throughout a case and heard all the factors urged on a court, it is difficult to assess the sentence passed.
The court is often obliged, for the protection of the public or in the public interest, and despite mitigating circumstances—despite perhaps the assurance that the accused will never offend again —to send someone to prison. That sometimes happens with youngish offenders, who are over 21.
This often happens to defendants who have been in breach of trust—who have defrauded their employer, for example. The judge is then obliged, although the defendant will never offend again, to send him to prison as a deterrent to others. The new clause will greatly help in that type of case, since it will now be possible in mercy partially to suspend the sentence. I therefore give the new clause my undivided welcome.
I agree with my hon. and learned Friend that it would have been desirable to give the court the power to make a supervision order for the period of the suspension of the sentence, and I hope that Ministers will consider that. It is precisely in the type of case in which a sentence is suspended, even under the present law, that supervision in the form of help is often most necessary.
On New Clause 10, I find the idea of institutionalising the universal practice of reducing a sentence which the court otherwise would have imposed for a plea of guilty is not without attraction. The accused man may be told by his counsel

that the facts are plainly against him and that if he pleads guilty he may get something knocked off his sentence. In many instances the accused will fight a long and unnecessary case at considerable public expense, partly because he hopes against hope that he will get off altogether, and he does not feel completely assured that he will get something knocked off his sentence at the end of the day.
We are seeking to institutionalise the assurance that if the man pleads guilty the judge will be obliged to reduce the sentence that he would otherwise have passed by one-quarter. That seems very reasonable and I welcome it. I am sorry that it is not acceptable to the Minister of State.

Mr. Douglas-Mann: Has the hon. and learned Member in his long experience ever considered at the beginning of a case that his client was likely to be found guilty but at the conclusion has found that that client has been acquitted and that the presecution case has collapsed? In these circumstances, might he not have advised his client to plead guilty and had the client accepted the advice he would have found himself serving a sentence that he should not have been given?

Mr. Grieve: The hon. Member has put that very attractively. In my professional career there have been many cases in which I have taken the view at the beginning that the man was guilty and he has been found guilty. Also there have been not a few in which I thought that the man was guilty but he was found to be not guilty. Very rarely has this been because the prosecution case has collapsed—

Sir M. Havers: It was due to my hon. and learned Friend's advocacy.

Mr. Grieve: It is nice of my right hon. and learned Friend to say that, but I think that it was more a matter of luck. I remember a case in which I defended a young man on his 21st birthday. When I made that fact known to the jury he was acquitted against all the odds. By and large, counsel are able to form a view at the beginning and to advise their clients, and they do so.
As a result of the legal aid system—and I am sorry to say this, but I feel that it should be said—many people now fight very long cases at the expense of


the taxpayer when their chances of acquittal at the end of the day are 999 to 1 against. This particular proposal at least would avoid some of these cases dragging on and some public expenditure. To that extent it is welcome.

Mr. Deputy Speaker: Mr. Fairbairn.

Mr. Kilroy-Silk: On a point of order, Mr. Deputy Speaker. Are you not calling speakers from this side of the House? This is the second time in succession that you have called a speaker from the other side when there were hon. Members on this side wanting to speak.

Mr. Deputy Speaker: The hon. Member will find that the matter will be dealt with satisfactorily in a moment.

Mr. George Cunningham: Further to that point of order, Mr. Deputy Speaker. The practice whereby there is an alternation in the calling of speakers is enshrined —if I may use that word—in "Erskine May". I do not think that "Erskine May" is authoritative, but the Chair does, and two inches down from the top of page 416 in the latest issue it says that the established practice is to call alternately from both sides of the House or of the Question.

Mr. Deputy Speaker: The hon. Member will find that I am not unaware of "Erskine May" and that the matter will be dealt with in a moment. I should add that I did not notice the hon. Member standing on that side of the House.

Mr. Fairbairn: I would happily have given my place to tile hon. Member for Ormskirk (Mr. Kilroy-Silk). I might have had something to say about what he said. But as things are, maybe he can talk about something that I am about to say, and his speech can last a little longer.
I welcome New Clause 4. It is important to adopt, in the modern criminal practice of punishment, the concept and understanding of prison. One can no longer merely banish from society, as if forgotten, into long periods of detention, people who have committed offences, other than psychopaths and those who by nature of their dangerous propensities must be detained for the safety of society.
We still have a wrong belief that the length of time that a person is detained

is a measurement of the crime he has committed regardless of the effect that will have on the interests of society. I am always distressed when I hear judges say that sentences must be more condign, and that the court will ensure that sentences are used to stamp out particular offences. One can imagine them saying that where a sentence was previously six years it will now be seven years and where it was previously 12 years it will now be 14 years.
That mathematical concept of the length of periods of imprisonment is false, facile and wrong. It does not deter a single person to get 14 years rather than 12, and no single member of the public would be reassured by the fact that someone got seven years rather than six. Therefore that mathematical approach to imprisonment must be shed. Insofar as this section of the Bill contributes to that philsophy it is excellent.
I agree with the remarks of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) that prison should not be long and languid but short, sharp and nasty. If one can show a person to the gates of hell and then take him away again, it is infinitely better than locking him away in a way of life that is not all that different from the way of life outside. It is infinitely better that people should get short, sharp sentences in a place that is unpleasant and corrective.
There are so many offences for which prison is necessary but inappropriate. An example is causing death by reckless driving, and another is offences in which persons are corrupt in one way or another in public office. There are many offences in which prison is all we have, but it is quite inappropriate, and where the length of the sentence is the only way of expressing the measurement of the crime. But we must get away from passing long sentences merely as an expression of public distaste.
There is a great promise in this new clause which could be used to great effect if it were used intelligently and in an enlightened manner. I agree with my hon. and learned Friend the Member for Solihull (Mr. Grieve) that it is all very well for hon. Members to pick out the odd sentence here and there and say that it is too much or too little. If one


sits even in the lowest court and passes sentences one after another and hears a series of pleas of guilty to various minor offences, it tests the wisdom of the most rational and sagacious person to get it right all the time, or even relatively right. Therefore, we should not pick on the odd sentence in matters about which we know nothing and criticise on the grounds of severity or leniency.
5.30 p.m.
The Bill contains one provision that was mentioned in the Renton Report. Subsection (2) says:
The part to be held in suspense shall be not more than three quarters and not less than one quarter of the whole term, and the offender shall not be required to serve that part unless it is restored under subsection (3) below; and this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection.
Why should we require the court to explain a statute in ordinary language? We are meant to legislate in ordinary language. The citizen is presumed to know the law, and we are presumed to pass laws which the citizen can understand.

Mr. James Dempsey: But do the lawyers know the law?

Mr. Fairbairn: The question whether lawyers know the law is irrelevant. They are paid to look it up. It is a terrible state of affairs that Parliament should legislate on the basis of laws which the citizen is presumed to understand and that we should seek to enact a provision to the effect that the situation is so abstruse that the law will have to be explained to the person who is presumed to understand it. That is an awful comment on modern legislation.
I turn to New Clause 10 which deals with a most important matter. Labour Members should not imagine that all a judge needs to do is to add one-third in such a way as to subtract one-quarter. Under the remission system a judge knows that a defendant who is sentenced to six years will receive one-third remission automatically and will spend four years in prison. The judge does not act as though the remission period will not operate. That is not the way the courts work and that is not what happens.
It is important to understand a much more fundamental fact. If a person pleads not guilty to a crime he knows he has committed in the hope that he will get away with it and is eventually convicted of that crime, he is also, in effect, convicted of the crime of perjury, although account is never taken of it. In other words, a person who has said on oath that he has not committed a crime and who is then convicted, has ipso facto committed perjury. Therefore, a plea of not guilty which results in a conviction is a conviction by the jury not only of the offence but of perjury. For that reason there is an additional element of wrong in the wrongful resistance to an offer to plead.
I have had innumerable cases in which I have advised people to plead and in which I thought it utterly unlikely that the person would be convicted, but in which eventually that person has been convicted. I have also had cases in which I thought it inevitable that the defendant would be convicted, and where that has not happened. Therefore, counsel can never be certain in giving advice to a client. One may tell a client "There are photographs of you committing the crime, your fingerprints are on the knife, eight policemen saw you do it, and 17 witnesses and the victim identify you—but if you want to go to trial, there is a chance. Have you any explanation of these matters?" One is then told "Oh, they are just liars, Sir. The photographs are faked." Theoretically, that is a reply one must bear in mind when acting as the man's counsel, but one gives advice on the ground that if a person says that he has not committed a crime and the evidence is not such to suggest that such a statement is absurd, one accepts the instructions and carries out the defence of that person. But there are many situations in which a person says "If I plead guilty, what will I get, Sir?"

Mr. Christopher Price: Does he say "Sir"?

Mr. Fairbairn: Of course he does, out of respect. We are in the situation of client and counsel and he is asking me to do for him what he cannot do for himself.
Let us be clear what happens in a situation in which one says to a person


"Whatever you get will be a quarter less than you will get if you do not plead". If a person gives false evidence and causes witnesses to be cross-examined on the basis that they are telling untruths to the court, and if he causes police officers to be charged with dishonesty when they are shown not to be in that position, it will be reflected in a higher sentence. At present the only advice one can give to a client is "If you insist on that pattern of events, the sentence is likely to be higher." I genuinely believe that if there were a proper commensurate diminution of sentence for a person who had the honesty to admit a crime which he knows he has committed, it would contribute to the administration of justice.
I am glad to say that in Scotland we do not take weeks and months to hear cases. The longest case in which I have ever taken part lasted for six days. However, we do not have the manifest and extraordinary procedures which the English find necessary to carry out their system of justice. The English procedures are so long. Surely anything that can prevent lengthy and unnecessary trials is manifestly in the interests of justice. Furthermore, we should aim at keeping people in prison for as short a time as possible.

Mr. Kilroy-Silk: I am glad to know that the hon. and learned Member for Kinross and West Perthshire (Mr. Fair-bairn) has suffered a conversion. Only recently in Standing Committee he likened prison to a holiday camp. Indeed, I thought that I heard him use that expression in an intervention earlier today. I do not know what the hon. and learned Gentleman has been doing in the past two weeks. Perhaps he has been to the door of hell, about which he spoke earlier, although his pallor does not suggest that that is so. In fact, he looks more as though he has been to Ascot than to the door of hell.
The hon. and learned Gentleman's comments were apposite and I, too, congratulate the Government on New Clause 4. It is clear that the Minister has acknowledged what was said on all sides of the Committee and by many outside the House—not least by the Howard League for Penal Reform, NACRO and the recent interim report of the Advisory Council on the Penal System—to

the effect that the length of sentence has little relationship to deterrent effect. In many cases the deterrent to any crime is not so much the fear of imprisonment or what the law says about the length of imprisonment—because most of those engaged in crime have no certain knowledge of the exact consequences that may flow from their actions—as the probability of being caught. The only deterrent effect of imprisonment is the fact of being imprisoned at all, albeit for a short time.
As for longer sentences of imprisonment, particularly in the circumstances of prisons now, with gross overcrowding, substantial numbers of prisoners living two or three to a cell, prisons lacking the ability or opportunity to provide educational courses or associations and where there can be no attempt at any form of so-called rehabilitation or reform, it is clear that to imprison a man for a long period is counter-productive—and six months is a long time unless the imprisonment is necessary for the protection of society. Imprisonment involves enormous public expense and achieves very little in terms of its objectives.
Prison does not deter, reform or rehabilitate. It punishes, but in many cases the punishment does not fit the crime. Therefore the new clause does not have just the motive of reducing the level of the prison population—although that is important— but is intended to give the courts greater flexibility and discretion in their sentencing processes which, in company with the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew), I hope they will use imaginatively. The courts should use the powers available in the new clause to obtain a reduction in the prison population and a far more sensible attitude to sentencing.
In that context, I hope that there will be far more consistency in sentencing among the courts and judges in dealing with similar or identical offences. Among the apparent and rather disturbing anomalies that confront us now are the tremendous discrepancies between the penalties imposed by some courts for some offences and the penalties imposed by other courts for others.

Mr. Grieve: I rise to comment on that matter because it is related to the point that I made to the House a few minutes


ago. I ask the hon. Gentleman to bear in mind that it is not possible to say that an offence judged by Court A is the same as that judged by Court B because the circumstances of the offender and the offence—as we who practise in the courts all know well—may be utterly different. No two offences are the same, although when a short excerpt appears in a newspaper, it may seem so.

Mr. Kilroy-Silk: I accept entirely that offences and offenders are different and that one should take the circumstances of the offender into account. The offender is the person with whom the court is dealing and for whom it must have prior regard.
During the past two weeks, suspended sentences of 18 months have been passed on an individual responsible for a silly and trivial poem that appeared in a magazine and on a man found guilty of a disgraceful and an extremely distressing rape. There cannot be any kind of confidence in a judicial system that hands out such sentences, in such quick succession, for what hon. Members and the public would regard as totally different offences warranting totally different treatment.
5.45 p.m.
I could go further and give the example of a woman in my constituency who was charged with and convicted of stealing a pair of tights from a supermarket and who received a suspended sentence of 18 months. The next day a gentleman convicted of smuggling in£1 million worth of jewels was allowed to commute his sentence to a£500 fine. Such discrepancies pervade our judicial system, and I can cite many more direct and relevant than that. This is something that we and the judiciary should consider if the judiciary wants confidence. I am responding here to remarks that have been made by Conservative speakers and the Opposition spokesman. If the judiciary wishes to commend the confidence of Parliament and the general public, it must show itself to be in tune with public opinion and be consistent in its sentencing processes.
My argument comes round the full circle. I accept and welcome the new clause to give the courts a greater degree of flexibility and accept that it is necessary and desirable. However, we must

strike a balance between that and, at the other extreme, allowing the balance to be so over-tipped that there are such anomalies and absurd situations as I have described today.

Mr. Neville Sandelson: I know that my hon. Friend would not wish to mislead the House—and indeed I do not disagree with the substance of much of his argument about discrepancies in sentencing between one judge and another, though, of course, arguments have already been advanced about why that may occur in most cases. However, I should be grateful if my hon. Friend would allow me to correct him about the earlier example that he gave to the House. My hon. Friend compared the sentence given to the editor of a magazine for publishing what he described as a poem with the sentence given in a rape case. In the former matter, the sentence was not 18 months, but nine months and a fine, and the sentence was suspended. In the latter instance there was an 18-months' suspended sentence. That is a small matter. I want to assist rather than to criticise my hon. Friend and it is for the sake of accuracy that that should go on the record.

Mr. Christopher Price: I should not have intervened in the debate had I not been struck by the extraordinary attitude of the hon. and learned Members for Royal Tunbridge Wells (Mr. Mayhew) and Solihull (Mr. Grieve) in their positive panegyric about plea bargaining. They wish to give the stamp of official approval to something that is now, as they said, going on behind the scenes. I detected in their almost lush phrases and rounded sentences a deep sense of guilt that the adversary system of justice—of which they are so clearly and obviously beneficiaries—is in fact fundamentally flawed. They are trying in this way to paper over the cracks here and there.
I strongly hope that the House will not pass New Clause 10 because I am quite convinced, from people I have come across as the result of the Confait case and from young people in my constituency, that instances of innocent clients being overborne by their counsel into pleading guilty are commonplace in South London. I should not want to put more shots in the locker of the legal profession or the police, because they also come into this, so that they can twist


arms any further to persuade innocent people to plead guilty.

Mr. Sandelson: How does my hon. Friend know that they were innocent?

Mr. Price: Because many of them were acquitted.

Mr. Grieve: Surely the hon. Gentleman understands that there is no element of plea bargaining in the advice that a counsel is obliged to give to his client about the possible outcome of a case. That is the first thing that any client desires to know. If the hon. Gentleman read into the statements of my hon. and learned Friend and myself a reference to plea bargaining, he was reading into our words something that was not there. The first duty of a counsel when asked by a client about the prospects of success is to tell him the answer candidly.

Mr. Christopher Price: I do not doubt that the hon. and learned Gentleman gives as candid advice as he can, but there is a string of famous miscarriages of justice that have sprung from counsel advising a client to plead guilty when he was absolutely innocent. One of the most notorious occurred three years ago in Lincolnshire and a television programme was made about it recently. An innocent young man had been forced to sign a confession at a police station and was persuaded by his barrister that the signing of that confession made it so unlikely that he would be acquitted that the best thing for him to do was to plead guilty. That man served his sentence and was given a free pardon when it was later discovered—by accident—that he was innocent.
Such cases are commonplace in our cities and I do not wish to place in the hands of people such as the hon. and learned Members for Royal Tunbridge Wells and Solihull any greater weapon to persuade people who usually come from a class that is wholly alien to barristers and those with whom they are used to dealing. I have nothing against the two hon. and learned Gentlemen. They are probably admirable folk.
I welcome the setting up of the Royal Commission to look into pre-trial procedures, but I am sorry that its terms of reference do not extend to considering our whole adversary system of justice. I regret that the new clause that might

have enabled us to debate this subject has not been selected. I am convinced that most people do not want advice from lawyers about the chalices of winning or losing so much as for the lawyers to take the case as it stands and to defend them to the best of their ability.
The debate has been an argument not for tinkering with the system but for making our whole pre-trial and prosecution procedures more similar to those in Scotland where there is considerably more protection for defendants before they come to trial. The last thing that we should do is to put into the hands of our barrister friends in the House the sort of powers that they are demanding in New Clause 10. I hope that the House will have nothing to do with the new clause.

Mr. Hooson: I entirely agree with what the hon. Member for Lewisham, West (Mr. Price) has said about the House rejecting New Clause 10. I shall not follow his argument about the adversary system in our courts except to say that, although I have been brought up with that system, there is a good deal to be said for modifying it to meet modern conditions and particularly for reviewing the pre-trial procedures.
As an advocate, I have found that it is all very well to defend an innocent "person of good character, but the trouble arises when one is defending an "innocent" person of bad character. One of the effects of New Clause 10 would be to bring wholly unjustifiable pressure on an innocent person of bad character.
I reject the view of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) that there is such a thing as a tariff imposed by judges. I know that certain judges at the Bar believe that there is a tariff. Lord Justice James was an example. But an equally distinguished judge, Lord Justice Shaw, totally rejects the idea, as do many others.
I agree that a judge's job is to interpret public feeling as he sees it in relation to the law and the defendant before him. If there are great discrepancies in sentencing, they are often justified by circumstances and the judge's judgment. That is the sole reason that a judge is there. He is chosen because he is a person of judgment.

Mr. Fairbairn: I agree that there is no such thing as a tariff between crimes of one sort and another, but does the hon. and learned Gentleman not accept that there is a tariff in the mind of every judge to the extent that if a person goes to trial when the evidence against him is overwhelming and is found guilty, the sentence will inevitably be greater than if lie had pleaded guilty in the first place?

Mr. Hooson: That may be so. It is a matter of judgment.
There are other reasons for the rejection of New Clause 10. I have often started a case thinking that if the defendant pleaded guilty, a certain sentence would be appropriate, only to find the whole picture change during the trial and a totally different impression emerge by the end of it.

Mr. Fairbairn: Usually worse.

Mr. Hooson: No. I am reminded of a fraud case in which I was prosecuting. Everyone in the robing room thought that seven years would be the appropriate sentence, but after three weeks, when the defendant was convicted, he was sentenced to two years' imprisonment because a totally different picture had emerged during the trial. How would the hon. and learned Member for Royal Tunbridge Wells deal with that situation?
If we passed New Clause 10, we should appear to be putting a penalty on those who plead not guilty. However we dressed it up, that is how the public would regard it. It would be totally wrong.

Mr. Mikardo: I agree that it would appear to the public that we were doing what the hon. and learned Gentleman suggests. It might also appear that we were doing something not altogether dissimilar from the practice in Fascist, Communist and other totalitarian countries where they give a very large price for confessions, including a big reduction in the sentence and sometimes a total reduction.

Mr. Hanson: I am sure that the hon. Gentleman is correct in his recollection of these matters. The Government are right to reject New Clause 10.
It appears that I am a lone voice in the wilderness on New Clause 4 because I very much doubt the wisdom of the Government in introducing it and the

House in passing it. I have listened with great interest to the theoretical arguments that have been advanced, including that for greater flexibility in sentencing. In Committee the hon. and learned Member for Royal Tunbridge Wells advanced a view that he has repeated today—namely, that many people who receive a suspended sentence think they have got away with it. Also, he argued that the effect of the clause, which has been substantially improved, would be to reduce the prison population. The new clause would give courts the ability partly to suspend the sentence and partly to make it operative. It would apply to sentences between six months and two years. That is precisely the same range where it is now thought appropriate for judges to consider imposing suspended sentences.
6.0 p.m.
What will be the effect of the clause? I think that judges will be tempted not to suspend a sentence but to impose one part of it and to suspend the other. The result of the clause will be that those who do not go to prison now will be committed.
Let us consider the practicalities. We have a burgeoning prison population. There are now well over 40,000 people in our prisons. The Secretary of State knows that many prisoners are spending over 22 hours a day in their cells. It is said by the prison staff at Walton Prison, for example, that if they take the action that is threatened the prisoners could be in the cells for 24 hours.
The hon. and learned Gentleman said that he hoped that a means will be found in implementing the new clause to provide a more rigorous regime for the short-term prisoner. How is that to be done with the present prison staffing and the resources that we give to the penal system? Surely it is impossible.
The Government have fallen into a trap. It is possible to present many theoretically attractive arguments for the H.O. It may be argued that if we had much more money to spend on our prison system and better conditions in the prisons there would be a great deal to be said for New Clause 4. However, if we consider the realities we are surely taking a false step in introducing the clause. I believe the result will be that those who would have had a suspended sentence will be given a sentence that is part suspended


and part operative. The Government should think twice.
The Minister of State's reaction in Committee was right. He doubted the effectiveness of this proposal when the hon. and learned Gentleman suggested that the result would be to reduce the prison population. If he considers it more deeply, the hon. and learned Gentleman will find that he will be well advised to withdraw the clause.

Mr. Abse: I have always observed that a sudden passion for reform or reforming clauses, or purported reforming clauses, such as New Clause 4, stems not from some new zeal for reform but from the compulsion of economic circumstances, and in this instance from the compulsion that our prisons are a disgrace to the nation. Desperate remedies are sometimes taken that appear attractive or seductive, but they may well result, as the hon. and learned Member for Montgomery (Mr. Hooson) was saying, in quite the contrary effect from what is hoped and intended.
Given the history of penal reform in this country, I do not believe that we can hope that sentences will reflect the intention of the legislature unless we provide maximum sentences for judges and magistrates to impose that are mandatory. History shows that, despite the exhortations of Lord Chancellors and the encouragement of Home Secretaries not to impose sentences that are unreasonable in the light of the current prison conditions, at the end of the day they go up and up. Although I would not be as didactic as the hon. and learned Member for Montgomery, who suggested that New Clause 4 is bound to result in an increase in the number who are sent to prison, I feel that the attraction will be great for many judges to take the view that a short sentence should be given with a period of suspension when otherwise they would not have taken the plunge and put the man in prison.
If the new clause is accepted, I suspect that emphasis will be put on allowing the courts to discover the new theory, namely, that what is required is a short sharp shock. Emphasis will be placed on proffering this new penal theory. It is not new to me. We have had it before at various times. The real position is that we cannot put any more people in prison. Hon. and learned Members

should know better than to talk about short sharp shocks when we have prisons in which men are locked up for 22 hours out of 24.
What more can be done to inflict punishment? It is self-indulgence on the part of anyone to talk about making sentences harsher or tougher when we are caging men as though they are animals. Although I realise that the intentions of my right hon. Friend in respect of New Clause 4 are of the best, he will have to allow it to be known through the usual channels that it;Is genuinely hoped that its provisions will not be used as a means of giving short sentences to those who otherwise would have received only a suspended sentence.
As for New Clause 10, I am not surprised by the reaction that it has provoked among some hon. Members who are not lawyers. They begin to wonder what sort of sentencing policies are in existence when such a proposition is seriously presented to the House.
It may have been jejune, but I was brought up to believe that those who appeared before the courts were treated as individuals and that their cases should be considered in the light of all the personal circumstances. Doubtless one has to take into account public opinion, and there are still some people in this century who believe in the theories of deterrence and retribution, but substantially people who are now acting as sentencers should have regard not to any tariff, not to a generalised system, but to the particular circumstances of the case.
It may be that the fine that they would inflict upon a rich man would be very different from that which they would inflict upon a poor man. It may be that they would inflict a different sentence upon someone who commits an offence who is highly intelligent and well endowed from someone who comes from a pathetic background and who is not so endowed. That is self-evident. To suggest that we should institutionalise the worst features of our penal system in such a clause is naturally an affront, and must be so to hon. Members who are not lawyers and who believe that the courts take into account all the circumstances of the case, including the circumstances of the individual who appears before them.

Mr. Mayhew: I think that the hon. Gentleman has misunderstood what I was saying in support of the clause. Of course I was not suggesting that any court should disregard the personal circumstances of the offender and the variants that he has been instancing. Surely the hon. Gentleman recognises that the Court of Appeal exists to put right sentences that are wrong by all proper standards, for example, those that are too severe. He realises that that jurisdiction exists. I am saying that there should be an administrative ability to reduce by 25 per cent. the sentence imposed by a court following conviction on a plea of guilty. That is all I am saying.

Mr. Abse: I do not find the hon. and learned Gentleman's intervention at all persuasive. If he is saying that there should be some form of general tariff and that we can leave it to the appellate courts to deal with the individual circumstances, I do not find that satisfactory.

Mr. Mayhew: That is not my suggestion.

Mr. Abse: It is capable of that interpretation. What is being suggested is the continuation of the notion of a tariff. The hon. and learned Gentleman indicated that there was a body of judicial opinion that found such a system repugnant. That view finds many echoes and resonances in this House. It is reactionary in the fuller sense of the term in that it means that we cease to take sufficient account of individual circumstances.
That was the error into which my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) slipped. I regret that he is not in his place. There is nothing more foolish than for hon. Members to criticise variations in sentences. If my hon. Friend had more experience in the courts, he would welcome the great differences between sentences, not condemn them. I am sure that he would recognise that the courts take account of the circumstances in individual cases and do not act mechanically. I have no patience with the attitude displayed by my hon. Friend, who wants the self-indulgence of being able to criticise as a lawyer manquéé what the judges are doing.
It is important that we maintain elasticity. The view put forward by the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) provoked hon.

Members because of its very arrogance. I do not say that offensively. The suggestion was that when a client goes to his solicitor, he, the solicitor, can make the judgment. All my professional experience teaches me that that is what I must not do. The man who comes to see me presents the facts, but I am not the judge. I am there to defend him, not to make a judgment. Implicit within the clause is the idea that the solicitor or counsel tells the man whether he should plead guilty or not guilty. In addition, the clause offers an inducement to the man to make it administratively more convenient. I find that a piece of judicial arrogance.

Mr. Mayhew: The hon. Gentleman must not mislead the House in that way. This proposal is not and never has been put forward as intending to facilitate the taking of the decision by a barrister or solicitor. It is never for the advocate to say "You must plead guilty". It is for the advocate to set out the probable consequences to the best of his ability and obviously to leave the decision to the man concerned. The hon. Gentleman knows that that is the position.

Mr. Abse: That is not how the hon. and learned Gentleman presented the argument, nor does it follow from the clause. When a man goes to see a solicitor, or when his case is being discussed with counsel, it is important to ensure that he is not influenced in his decision to plead guilty or not guilty by offering him certain inducements. But that is bound to happen under this proposal.
One does not know at the beginning of a trial what the ultimate result will be. How can the solicitor or barrister know what evidence will be available? How does he know whether witnesses will come up to proof in the witness box? How can he anticipate the consequences of cross-examination? All those with court experience know that often the verdict or sentence is different from what the solicitor or barrister expected. Therefore, I believe that this is a dangerous clause. It has authoritarian overtones that I do not like.

Mr. John Lee: Is it not open to yet another objection? Although a person may realise that he is guilty of something—we know


about mens rea—it may not be the offence with which he is charged. A homely example is of the person who may be guilty of some faulty driving—I use a neutral word—and it is arguable whether he is guilty of dangerous driving, which can carry a term of imprisonment, or of careless driving.

6.15 p.m.

Mr. Abse: I agree with my hon. Friend. I do not understand, having read the clause, what the consequences would be for the man who was sent to prison. We want him to behave in the best possible manner—in a way that is not likely to cause greater difficulties for prison officers than they already have. Yet, because the quarter by which the sentence is to be reduced is mandatory, there will be little inducement on his part necessarily to maintain the standards that would make the lives of prison officers easier; therefore, it is desirable neither before nor afterwards. The whole clause is likely to meet severe criticism. I hope that my hon. Friend will reconsider it.

Mr. Roger Sims: I wonder whether the Minister of State will make it clear that the decision on the length of the sentence to be served and to be suspended will be made by the court. This is not immediately evident from the wording of the clause, which provides that a court
may order that, after he has served part of the sentence in prison, the remainder of it shall be held in suspense.
It is not clear to me—I imagine that this is the intention—that the court will decide how much of the sentence will be spent in prison and how much of it will be suspended.
The alternative is for the prison authorities to decide the point at which the offender is to be released. I do not imagine that is the intention. Therefore, it should be made clear in the clause.
I am disappointed that the clause does not cover the 17 to 21 age group. That is a pity. However, the Minister explained why that is not practicable at this stage.
I am more than disappointed—in fact, alarmed—that the Minister should say that there is to be no power for a court to make a supervision order for the suspended part of the sentence. I had assumed that that would be the case. It

is automatic with a fully suspended sentence. The court has the power, which it often exercises, to make a suspervision order in such a case. It seems an anomaly that, if the sentence is to be fully suspended, a supervision order can be made, yet, if is to be only partly suspended, there is no power to make such a supervision order.
The Minister of State knows that many hon. Members share his view that there are strong arguments in favour of shorter prison sentences. However, we should not delude ourselves into thinking that those views are necessarily widely shared by some of our constituents. It is one thing to give the courts power to say "We have taken into account your circumstances, the nature of the offence, and so on, and we therefore sentence you to 18 months' imprisonment, of which you will serve six months and the remaining 12 months will be under the supervision of a probation officer." It is quite another thing to say "We sentence you to 18 months' imprisonment, but, after all, you will serve only six months" —full stop.
I do not think that will be acceptable to people outside, who feel that one of the purposes of imprisonment is to afford some protection for the pubic. If the court feels that, having imposed a sentence of 18 months, it could reasonably suspend part of it, it should at least, for the suspended part of the sentence, be able to place the person concerned under some form of supervision.
The Minister referred to the expense of supervision. Of course there is some expense involved in supervision, but very much less than in keeping a man in prison. The object of the exercise is to let the man out of prison at an earlier stage.
There will be an adverse reaction to the proposals in the new clause unless we ensure that the person who receives a sentence part of which is suspended and part of which is served is under some form of supervision for the suspended portion.
One can imagine the reaction when the first offence is reported in the newspapers, when somebody who is made the subject of an 18-month sentence is released after six months without subsequent supervision. I strongly urge the Minister, to consider, before the clause


comes before another place, writing in the power to make either a supervision order or a probation order.

Mr. Edward Lyons: When the provisions in New Clause 4 were introduced in Committee I was horrified to hear the Minister welcome them and say that he would put something in the Bill on Report. The clause is a recipe for putting more people in prisons and for giving longer prison sentences. Since judges are acutely sensitive to the charge that a suspended sentence allows somebody to get away with it, they will tend to impose a short prison sentence followed by a suspended sentence, namely, three months—a period inside followed by a period outside.
But, more than that, where a judge thinks that nine months is the appropriate sentence he will give nine months just the same. But he will have the power to suspend over a further period to keep the defendant in check. So he will give the same prison sentence as he would have given anyway followed by an additional suspended sentence. The combined sentence may well be much longer than that which he would have imposed under the old system.
The effect will be that if the man offends again he will find himself in prison not only sentenced for the further offence but having added to it the long extra suspended part of the initial sentence. I thought that the object of the exercise was to reduce the population of our prisons because the prisons are teeming with people and we have a prison building programme which, with people three to a cell, cannot cope with present expectations.
Consequently, it seems crazy to introduce legislation of this sort which will produce longer sentences and put more people in prison. I was the only one to say so in Committee, but apparently what I said had no effect. I shall therefore repeat my prophesy. There will be a criminal justice Bill within the next few years in which the Government will be seeking to strike out this new clause.

Mr. F. P. Crowder: I entirely agree with what the hon. and learned Gentleman has just said. Does this state of affairs he has described not fall in with the principle

which we have seen over the years in which a judge, knowing that if a man behaves himself he will get one-third remission and wanting him to serve 12 months, gives him 18 months? That has happened time and again.

Mr. Lyons: That may well be so.
Let me add my voice to the condemnation of New Clause 10. It would be terrible to institutionalise the system suggested in that clause. Furthermore, there is something fundamentally unjust in enshrining as a statutory principle that if the proper sentence is, say, 12 months, one gives only nine months
Ninety per cent. or more of people plead guilty anyway. What is proposed is that in future if the judge thinks that, in the interests of the community, X is the proper sentence, he should automatically give X minus 25 per cent. However, the opposite will happen. Nobody can know what sentence is in the judge's mind. Nobody can know, therefore, whether he is allowing the 25 per cent. Since guilty is the normal plea, all sentences will increase in the judge's mind by an appropriate amount, so that the guilty plea will be exactly right and fighting will get one more than one is entitled to.

Mr. Rees-Davies: I agree with what has been said in the very last few moments. The fallacy of the argument of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) is that we do not know what the tariff is. It is not set out. We do not know what is in the judge's mind. Therefore, we do not know the X which will be subject to the formula of minus 25 per cent. There are honest judges who know their own minds and have a tariff. There are others who are dishonest, and there are others who have no tariff. The best judges are those who do not have tariffs. It is the purpose of the judge to judge and he should judge on all the circumstances of each case, taking all the factors into account. The greatest of our judges, such as Lord Justices Lawton and Shaw, to name just two of several, can be persuaded that, because of all the differing circumstances a case does not qualify for any particular tariff.
There is another greater argument which, unfortunately, also defeats my hon. and learned Friend's very ingenious clause, which has been attacked far too much in many ways, and undeservedly.


It is that I do not think that Parliament can be seen to approve any provision which seeks to encourage a person to plead guilty or otherwise. Certainly it is that at present counsel are put in very grave difficulties in many cases in offering their advice on whether there should be a plea of guilty.
That is predominantly due to one class of case which is increasing and has been increasing in recent years and which involves what are known as the "verbals". In this class of case almost invariably the accused person has previous convictions. He says that he never made statements which the police allege that he made. Till we alter the system of procedure and exclude entirely that to-ing and fro-ing of the "verbals" and provide some system whereby safe evidence can reasonably be given we cannot take the risk that is involved. This is exceptionally difficult. Take a case in which the only evidence of armed robbery is a number of oral statements alleged to have been made by the defendant to a number of police officers, probably in the end partly confirmed by a statement in writing in which he is alleged to have made that confession. In that class of case, if the police evidence is believed, there is absolutely no defence to the charge. If, on the other hand, the accused person is to be believed, he has a very reasonable chance of acquittal.
Those are the most difficult cases. After many years of experience of these cases, I have regrettably come to the conclusion that I am no longer prepared to advise a client one way or the other, whether he should plead guilty or plead not guilty in circumstances which depend upon the "verbals".
A very grave state of affairs exists at the moment because, unfortunately, there have been in the London area, at the Old Bailey, in recent years a number of cases of thoroughly dishonest policemen who have testified that statements have been made, which testimony has turned out to be wholly untrue. It occurs a little, but not very much, in other parts of the country. Only a small proportion of the police force is involved. The overwhelming proportion of the police force tell the truth. Those who, unfortunately, do not and are frequently caught out are allowed to go scot-free.
This makes it exceptionally difficult to decide whether a person ought to plead guilty or not guilty. That is one of the reasons why I feel it is not right to offer a specific deal on the basis of deducting a substantial amount of time from a prison sentence by virtue of the tendering of a plea of guilty.
6.30 p.m.
On the other hand, there may be cases where, for a variety of reasons, the judge may wish to give a substantially lesser sentence. I take the obvious and very proper example of a man who is charged with rape. Here is a case where, inevitably, a judge should give a lesser sentence to a man who contends, perhaps, that he never was guilty of rape but that he was guilty of indecent assault but who, in the end, pleads guilty and saves the woman concerned and other people from having to give evidence in the trial. That must be a case where a plea of guilty warrants a lesser sentence than the case where the accused man insists on all the evidence being heard. In my judgment, at least, that would be a proper factor, but the extent of that factor and the manner in which it is to be dealt with must depend on the circumstances of the case, and that must be left to the judge.
I know that my hon. and learned Friend the Member for Royal Tunbridge Wells has an ingenious and talented mind. He is trying to put forward a proposition which has a lot to commend it. However, for those reasons, I regret that I do not find it acceptable.
I invite the Government to look again at New Clause 4 when the Bill gets to another place to see whether there cannot be a supervision order. I have always wanted to see a position in which a short term of imprisonment could be given, followed by a period on suspension. I do not object to the fact that it might result in an overall potentially longer sentence. I believe that it would be valuable to have short sentences of imprisonment followed by suspension, but it seems to me that there should be, almost automatically, some form of supervision during that period of suspension after the sentence of imprisonment. I hope that that can be considered carefully in another place.
I also share the view, expressed by my hon. and learned Friend the Member for


Solihull (Mr. Grieve) and reiterated by a number of my hon. Friends, that we should seek to do something for those between the ages of 17 and 21, and that a custodial order should also be the subject and part and parcel of this Bill.
I draw attention to one small matter which has not been referred to but which I have seen recently in another Bill. I hope that it will be taken out of the new clause and that we shall not see it again. Surely we are not to tell judges or even civil servants that they must speak in ordinary language. It is quite ludicrous. The new clause says:
…this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection.
I do not think that we can ask Her Majesty's judges to be told that they must use ordinary language. I am not even prepared to ask civil servants to do it. How any parliamentary draftsman could have put in these words, I do not understand. I hope that they will be taken out and burned.

Mr. Alexander W. Lyon: I join those who criticise New Clauses 4 and 10. Both were born in the mind of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) and both suffer from the same flaw, which is that, after they are passed, the level of sentencing will remain roughly the same for the same kind of offence and that this will result in some material diminution in the period that people serve. The experience of suspended sentences indicates that there may very well be a reverse trend. Suspended sentences showed a marked decrease in the prison population for a very limited period. When they were made operative, as they came in breach, the prison population actually grew.

Mr. Grieve: Surely that is because they were used over-optimistically at the outset. Everyone recognised that, and the Appeal Court since has said so in terms over and over again. This was thought of as a way out in very difficult cases, but clearly many recidivists were given suspended sentences when they should not have been. This is a difficulty which has now been overcome.

Mr. Lyon: The hon. and learned Member for Solihull (Mr. Grieve) still sits as a recorder. I am sure that he

recognises that, in circumstances which would come before the average court, there would be a temptation in the court to say that the man concerned would get the substantive period of imprisonment that he would get in any event but that, in order to provide a safeguard against the repetition of the offence, the court would add a period of suspended sentence so that the overall effect, if he did not get into trouble again, would be the same, but there would be the safeguard that, if he got into trouble again, the suspended sentence was almost bound to be brought into operation and would be likely to lead to an increase rather than to a decrease in the prison population. I do not believe that that will happen with New Clause 4 and in Committee I was surprised when the Minister responded so readily to the invitation to consider this suggestion and has now brought forward this clause. I agree with my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) that in time we shall have to review the clause. Nevertheless, I have no doubt that it will be accepted by the House.
I hope, however, that New Clause 10 will not prove acceptable. The hon. and learned Member for Royal Tunbridge Wells makes an error, again for basically the same reason. It will increase the amount by which a judge will award a sentence if he knows that for a plea of guilty there will be an automatic reduction of a quarter.
In principle there is a good deal to be said against the proposition. As other hon. Members have pointed out, most cases are pleas of guilty. If a man comes before the court upon incontrovertible evidence which even he cannot deny—where, for example, he has been caught red-handed—it seems a little odd to say that automatically he must have a quarter knocked off his sentence. He has to plead guilty. I agree that there will be the odd example where counsel can argue in mitigation in a debatable case that his client has chosen to tell the truth and plead guilty and that that is urged in mitigation in the hope that the court will pay attention to it and give some diminution of sentence. But, when an accused person comes before the court having been caught in the act, it seems ludicrous to give him 25 per cent. off automatically as a matter of principle.
As a matter of practice I should have thought that what will happen, as my hon. and learned Friend the Member for Bradford, West said, is that the average tariff for pleas of not guilty will simply go up to allow for the 25 per cent. knocked off for pleas of guilty and that again the prison population will go up rather than down.

Mr. Fairbairn: If the hon. Gentleman is right, it will encourage the strange English practice of asking for 98 other offences to be taken into account, because the accused man will get 25 per cent. off all of them.

Mr. Lyon: The mind boggles at what the computer would have to do in court to be able to assess the sentence there. I take the hon. and learned Gentleman's point.
I think that the hon. and learned Member for Royal Tunbridge Wells has perhaps not seen the consequences of his proposal, and I reinforce the suggestion that the only purpose of the clause must be to put pressure upon accused persons to plead guilty. It can have no other purpose and it is bound to have that effect.
Even if counsel gives advice to a client in a dispassionate way, he is bound to tell him that if he pleads guilty there will be an automatic reduction of 25 per cent., and that is bound to be a factor in the accused man's mind. It does not matter whether he is guilty. If he thinks that he will be found guilty, that probably will be a factor in determining whether he accepts the advice that it would be better to plead guilty. In those circumstances the pressure will be increased by this clause.
At the moment there are circumstances in which counsel feel that it is right to indicate to their clients that they are likely to be found guilty and that, if they are, their sentences may be longer because they have pleaded not guilty. But if one can also say that there will be an automatic 25 per cent. discount if the man pleads guilty, that is bound to put pressure on him.
I came across too many cases when I was Minister where a plea of guilty was entered and a finding later of a miscarriage of justice. Now that I am returned to the Bar, I am more careful

about giving advice to plead guilty. No one can tell whether a man should plead guilty. We should retreat from the suggestion of putting pressure on a man.

Mr. John: We have had a long debate. There are three aspects upon which the House needs reassurance. First, my hon. Friend the Member for York (Mr. Lyon) needs to be reassured because he was not in the Chamber when I dealt with the subject. This is not the brainchild of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew). It has been discussed and favoured by the Advisory Committee on the Penal System. It is not a device for increasing the prison population.
I take the argument of my hon. Friend the Member for Pontypool (Mr. Abse) that this should be used instead of the full custodial sentences rather than instead of the full suspended sentences. All steps that need to be taken to draw this to the attention of those who impose sentences will be taken in the interim.
For the reasons that have been amply demonstrated, the Government view is that it is undersirable to accept New Clause 10. I advise the House to reject it.

Mr. Mayhew: I do not propose to put the new clause to a Division. I listened with profound dismay to some of the arguments that have been used against it, based as they are upon a misapprehension of the way in which the criminal law system is operated. On the basis that a good idea will eventually attract support, I shall not press New Clause 10, but I hope that it will prevail in the end.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 5

RIGHT TO HAVE SOMEONE INFORMED WHEN ARRESTED

'Where any person has been arrested, other than under the Prevention of Terrorism Act 1976, and is being held in custody in a police station or other premises, he shall be entitled to have intimation of his arrest and of the place where he is being held sent to a person of his choosing'.—[Mr. George Cunningham.]

Brought up, and read the First time.

6.45 p.m.

Mr. George Cunningham: I beg to move, That the clause be read a Second time.
Before Englishmen in the House wonder how revolutionary this proposal is, perhaps I can be allowed, as a lawyer manaué and a lapsed Scotsman, to point out the situation north of the border. In Scotland the relevant provisions are enshrined in statute—in Sections 19 and 305 of the consolidation measure, the Criminal Procedure (Scotland) Act 1975. One of the sections refers to non-summary offences and the other to summary offences. I shall quote only one, Section 19, which reads:
Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to have intimation sent to a solicitor that his professional assistance is required by such person, and informing him of the place to which such person is to be taken for examination.
In drafting the new clause I have tried, so far as possible and so far as I consider it appropriate, to follow the language of that Scottish provision to minimise the chance that anyone would say that it was defective in draftsmanship.

Mr. Hooson: If so, why did the hon. Member leave out the word "immediately"?

Mr. Cunningham: Because it was a mistake. That has been pointed out to me by my hon. Friend the Member for Sheffield, Heeley (Mr. Hooley). I do not know why the words came to be omitted. At a previous stage of my personal consideration and urging of this cause the words were included. If the proposition commends itself to the House, I should certainly accept that a correction along those lines should be inserted in order to introduce the sense of immediacy

Mr. Rees-Davies: The hon. Member also used the word "sent". That implies that the intimation shall be sent by post. In practice it would be conveyed by telephone. One cannot have the intimation of an arrest sent. It is communicated to another person

Mr. Cunningham: That is highly disputable. First of all, the Scottish provision—which I know is 100 years old—uses the term "sent". Secondly, I use the word "sent" in reference to telephone

messages. Intimation can be sent by means of a telephone call. The object is to ensure that, when a person is arrested he shall be able to inform somebody that he has been arrested and where he is.
Although north of the border that right is enshrined in statute in the strong terms that I have read out, south of the border the situation is not covered by statute but by the notorious Judges' Rules. As we all know, the Judges' Rules are freely ignored by the police.
Let me give two illustrations of that, because not only is the extent to which the Judges' Rules are ignored by the police serious but it is important that we recognise it. The Judges' Rules are categorical in saying that they shall be displayed in police stations. I dare say that some hon. Members have seen Judges' Rules on the walls of police stations, but I have not. They are not displayed in many police stations. There are many police stations where the contents of the Judges' Rules are not supplied to those who are required to know them.
The second example is that the Judges' Rules are also categorical that when a written statement is being taken the police must first try to get the person concerned to write it down himself. They are to ask him if he wants to write it down. The police do not do that. Normally the police officer takes out the forms and proceeds to write the statement down and not give an option to the person who will be asked to sign the statement. That is a categorical denial of the Judges' Rules. There are other ways in which they are freely breached.
As regards the right of a person to have access to a solicitor, the relevant provision in the Judges' Rules starts with the so-called principles. At the beginning they state:
Every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so.
We then have to turn to the administrative direction appended to the rules. The last administrative direction, No. 7. states:
A person in custody should be allowed to speak on the telephone to a solicitor or to his friend, provided that no hindrance is


reasonably likely to be caused to the processes of investigation or the Administration of justice by his doing so…
He should be supplied on request with writing materials and his letters should be sent by post or otherwise with the least possible delay. Additionzl telegrams should be sent at once at his own expense.
It will be noted that the provision about not impeding investigations that is put there in relation to seeing a solicitor or talking to his friends is not put there in respect of the provision of writing materials or the sending out of letters and telegrams—always provided that he has the money to pay for a telegram.
I pointed that out to the former Home Secretary in a debate on the Prevention of Terrorism Act early in 1976 as a ground for saying that it was contrary to the Judges' Rules to hold a person incommunicado in a police station because the right to send out a message does not have a qualification attached to it. The Home Secretary had a quick look at it and said that, on the face of it, it looked as though there was some ground for believing that there was something wrong. In the spring of 1976 he consulted the Lord Chief Justice, and the two of them agreed that there was a need for what the Home Secretary called "clarification".
The result was a circular issued by the Home Office on 14th May 1976 which recited the provisions that I have read out. The circular said that the matter had been raised in the course of parliamentary proceedings, and stated:
The Home Secretary has consulted the Lord Chief Justice for the avoidance of doubt"—
there was no doubt—
and now wishes chief officers of police to be aware that the sending of letters and telegrams from persons in police custody should be subject to the same proviso as telephone communications…Accordingly, a person in police custody should be supplied on request with writing materials, but the sending of any letters or telegrams he may prepare should be subject to the proviso that no hindrance is likely to be caused to the processes of investigation or the administration of justice by doing so
and so on.
The circular noted:
The guidance contained in this circular has been drawn up with the approval of the Lord Chief Justice.
I always thought that the Judges' Rules were Judges' Rules with an apostrophe

after the "s". It now seems that they are Judge's Rules with an apostrophe before the "s" in the sense that they are the Lord Chief Justice's rules. The Lord Chief Justice can apparently authorise the Home Secretary to alter these rules or to "clarify" them in a sense that I would argue is altering them.
The circular was probably sent out by an Assistant Secretary or Under-Secretary in the Home Office. Whether hon. Members believe that it is a fundamental right that should exist or a fundamental right that should not exist it cannot be denied that it is fundamental. One cannot get much more fundamental than being held incommunicado in a police station. This letter was sent out after secret consultation with the Lord Chief Justice and I, as the Member who had raised the issue, was not told that this fundamental right had been erased from those rights that we had enjoyed before May 1976.

Mr. F. P. Crowder: While I agree in many respect with what the hon. Gentleman has said, does he not think that there is a certain danger in allowing a person in police custody to contact someone of his own choosing? Let us take the instance of a big fraud or a conspiracy and let us suppose that the person of his own choosing is on the fringe of the conspiracy. If the person in custody is given the right to communicate with him, within hours the person with whom he communicates will be on an aeroplane bound for a country with which we do not have an extradition treaty.

Mr. Cunningham: I shall come to that point a little later. The question here is where we should draw the line between restrictions and activities which we may think are supportable in the interests of catching and convicting criminals and those things that we are not prepared to do. For example, in this country we are not prepared to torture people, although one can catch more criminals that way.
I also draw the line at not being prepared to see a person who is taken into a police station told that he cannot communicate with anyone outside. I recognise that, if the provision contained in my new clause reaches the statute book, there must be cases sometimes in history where, as a result, we shall not catch someone. I have not proposed that a


person in custody should be able to send a secret message. If he is telephoning someone, the police will know that telephone number. I would draw the line there, but it is a matter of judgment and everyone must reach his own judgment.
I think that the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) will also notice that I am proposing that this right should exist for people arrested
other than under the Prevention of Terrorism Act 1976".
I believe that it is slightly potty to say that a person in custody can send a message to someone as long as that someone is a solicitor. What if the person does not have a solicitor or wants to telephone his wife to ask her to get him a solicitor? I do not think that the Scottish provision is sensible in that regard. If one allows the person to contact a solicitor, clearly a message is got out. The idea that a criminal cannot find a solicitor who will pass on a message to other crooks does not bear examination. If he can tell anyone, that danger exists. If he can tell a solicitor, he should be able to tell someone of his own choosing.

Mr. Christopher Price: May I refer briefly to what my hon. Friend said about the Home Office issuing a circular changing the Judges' Rules in camera without telling hon. Members. After the Confait case, which is now notorious, the Home Office changed the rules in exactly the same way as my hon. Friend has described, but in this case it changed the rules concerning the interrogation of the mentally retarded. However, it did not tell me or any other hon. Member. Is not it important when these circuiars are issued by the Home Office that we should have proper publicity so that people other than the police officers to whom the circulars are sent should know what the rules are?

Mr. Cunningham: I entirely agree. I was informed of the circular to which my hon. Friend referred when I asked a Question about consultation with the judges on the Judges' Rules. Copies of this circular were lodged in the Library of the House in the normal way, but that is not an adequate way of bringing such matters to the attention of hon Members.
One perfectly acceptable way of bringing subjects to the attention of hon. Members is by inspiring a Question and then answering it. Until we get the sensible device of written statements in Hansard, that is the means by which, on an issue that is known to be sensitive and to have caught the attention of hon. Members, the Home Office should ensure that hon. Members know what is going on.
I stress that the right involved here is a fundamental one. As in the case of Nacht and Nebel, the taking away of people at night and holding them incommunicado in police custody, Gestapo custody, was one of the things about the 1930s that we all condemned. If, at the time when habeas corpus was introduced, anyone had considered the possibility that police might be able to pick up people and not give them the right to tell anyone, there is no doubt about what would have happened. In those days, when red blood flowed through the veins of hon. Members, this right would have been put on the statute book.
How can someone exercise habeas corpus if nobody knows he is there, if he is being held incommunicado? I understand that habeas corpus operates only after 24 hours, so it might be suggested that this right should exist only after 24 hours. I do not think so. One should have the right to do it immediately, so that if necessary habeas corpus can be brought into operation after 24 hours.

7.0 p.m.

Mr. Fairbairn: The fundamental right of which the hon. Gentleman speaks is very important and it has long been a statutory right in Scotland. It would seem to be a very civilised and proper right.
The hon. Gentleman says that the person concerned should be able to communicate with somebody of his choosing rather than a solicitor. The system operates perfectly effectively in Scotland because the police ask "Have you got a solicitor? Do you want us to call one?" If the man says that he does not have a solicitor and does not know one, they will call a solicitor. They know all the local solicitors.
I give the hon. Gentleman, a lapsed Scotsman, as he described himself, this warning: many a person whom one asks "Why did you not ask for a solicitor?" replies "I did, but they never brought one." The hon. Gentleman's proposed


provision, although would be enshrined in statute, would always be subject to the fallibility of those concerned.

Mr. Cunningham: I do not agree that it would be better to have a provision exactly on the lines of the Scottish provision, because there might be many cases in which the person held does not want a solicitor but wants his wife to know where he is.

Mr. Mikardo: Or a husband or father.

Mr. Cunningham: Why should not that be possible? Youths have been picked up who want their parents to know. There is no reason why one should have to have a solicitor informed and then ask him "Please tell Dad." That is non- sense. The person who is held should be able to tell someone.
That does not mean that there would be any obligation on the police to make thousands of calls or put themselves to enormous trouble. There would be a right, exercisable within the reasonable bounds of practicality, to have that message sent out. If the right exists in Scotland and the police do not mind one bit that it exists in Scotland—as has been confirmed not only by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) but by the Lord Advocate, speaking during the passage of the Prevention of Terrorism Act last year—it cannot be catastrophic to have it in England.
This is a precise and extremely narrow reform that does not need to wait—I anticipate one of the defences that my right hon. Friend the Home Secretary will put up—for the recently announced Royal Commission on pre-prosecution procedure to come down out of orbit. The appointment of a Royal Commission is normally a way of ensuring that nothing happens in that field whilst it is in orbit, but the Press release on that Royal Commission made clear that the Government were not committed to doing nothing in that field until the Royal Commission reported.

Mr. Robin Corbett: I am sure that every sensible hon. Member is 100 per cent. with my hon. Friend on this. But will he explain why, having made his case so well on the general principle, he excludes people picked up under the Prevention of Terrorism Act? The position is even

worse under that Act. Such people can be held incommunicado for seven days.

Mr. Cunningham: I exclude them only because I want to get something through, and there is not a cat in hell's chance of getting it through without this rather more restricted provision. I support both propositions, but I want to get something in the Judges' Rules on the statute book.
I now ask other hon. Members to close their ears whilst I have a domestic chat with my right hon. Friend the Home Secretary. He knows that the Government are obliged to support the clause on the ground that a party caucus has passed a motion that supports it. I hope that he will not wriggle out of that. If he and the Cabinet do. all the members of the Cabinet who vote against it will be in breach of the code of conduct they signed to adhere to when they were adopted as candidates. There are much better reasons in support of the clause, but I hope that that will be taken into account on the Front Bench.

Mr. Hooson: I very much support the spirit of the clause. It deals with what seems to me to be a fundamental right, but as drafted it is likely to be ineffective. First, it does not include the word "immediately". Moreover, it puts no onus on the police to inform the accused man of this right.
In parenthesis. I entirely agree with the exclusion of those arrested under the Prevention of Terrorism Act, because in the public mind there is a distinction between dealing with a terrorist and dealing with an ordinary man proceeded against under the ordinary provisions of the criminal law. I entirely agree with the hon. Member for Islington, South and Finsbury (Mr. Cunningham) that he was wise to make that exclusion, whatever the merits or demerits of the argument about terrorism.
The clause says:
he shall be entitled to have intimation of is arrest and of the place where he is being held sent to a person of his choosing".
Who is to inform the man of that right? There is no requirement that he be informed. Therefore, an elementary necessity is to include "immediately" and to make the clause read: "he shall be told immediately of his entitlement to have intimation" and so on.
Even then the clause is likely to be ineffective. One can imagine the station sergeant mumbling "I must inform you of your right to have intimation of your arrest and the place where you are being held sent to a person of your choosing" after the caution, and then being able to say later "He never asked".
The clause must also deal with how the intimation is to be sent. There was a proper intervention by the hon. and learned Member for Thanet, West (Mr. Rees-Davies), who suggested that "sent" could be interpreted as "sent by post". We must have a better means of communication.

Mr. Grieve: It could be second-class mail.

Mr. Hooson: I believe that the Home Secretary could accept the spirit of the clause and tidy up the wording to make sure that it is an effective provision. I see no reason why a person who is arrested should not have this right. After all, it is his right if he insists upon it, and he should be allowed to do so.
The clause does not deal with the person who, in the euphemism, is helping the police with their inquiries. It deals with the man who has actually been arrested. Therefore, there must be evidence enabling the police to proceed against him. I agree that it will undoubtedly be suggested from the Government Front Bench that this matter and many others must be looked at by the Royal Commission considering post-arrest procedures. A great deal needs to be done to improve those procedures. For many years I have been in favour of interrogating magistrates. The whole question of "verbals", which so clouds the issue in many cases today, could be cleared up if we had proper methods of interrogation before magistrates.

Sir M. Havers: In what circumstances does the hon. and learned Gentleman expect magistrates to be interrogated?

Mr. Rees-Davies: The hon. and learned Gentleman means interrogation by magistrates.

Mr. Hooson: I was referring to magistrates who interrogate, on the lines of the French system.
The Home Secretary should not wait for the Royal Commission. It may be years before it reports, Every hon. Member should be in favour of this basic provision. Otherwise, we are entirely hypocritical; we subscribe to Judges' Rules in the belief that they are ineffective and we like to see them ineffective. The hon. Member for Islington, South and Finsbury is trying to introduce an effective provision so that people are informed that they have the right to have relatives told that they are under arrest.

Mr. Mikardo: I wish to quote two cases within my constituency experience. One is that of a boy of 16 who was picked up by the police on his way home from work, which would have been at about 5 p.m. or 6 p.m. His parents did not know where he was until 2 o'clock in the morning. As he was riding a motor cycle or a moped, which he had ridden for only a very short time, his mum was very worried about him and rang all the local hospitals. Can that be right?
The second case is an even more glaring one. It is that of a woman who was taken to a police station and asked if she could telephone her husband at his place of work, so that he might leave work, go home and let the kids into the flat when they came from school, and give them something to eat. She was told "No. You cannot." Can that be right?

Mr. Rees-Davies: I deplore these cases. I agree with the spirit behind the new clause. I think that it is essential nowadays that we should give rather greater protection to a person who has been arrested. The police frequently arrest people at the weekend and keep them in custody, incommunicado, throughout the weekend.
The most recent case of which I have knowledge is before the Home Office at the moment. It is an exchange control case. The person arrested, who is of perfectly good character, was not allowed to communicate with anyone for quite a long period of time. He was, therefore, unable to get in touch with lawyers and advisers.
Where the police are arresting people of known bad character, it is becoming a practice rather than a rule not only to take them into custody but not to allow them to communicate at all for a very substantial period of time, even


as long as 48 hours. The time has come to put a stop to this practice, but the new clause will not do this.
I am not at all sure that I necessarily want a person to be told by the police that he has the right to get in touch with someone. The arrested person—as in the cases mentioned by the hon. Member for Bethnal Green and Bow (Mr. Mikardo)—may ask if he can get in touch with his wife, or with his lawyer, or with a doctor or social worker, or some such person of his choice. I do not accept that in these days the choice should necessarily be a lawyer. On the other hand, I am not arguing for a moment that the police should allow an accused person to see his lawyer immediately after being arrested. The police may have a very good reason for not wanting an accused person to see a lawyer, or any other person, at that particular time. I am not arguing in favour of that, and we shall have confusion on this issue if we are not careful. I am saying that immediately following his arrest the arrested person should be entitled to make known, if he wishes to do so, the fact of the arrest.
This would involve a couple of amendments to the new clause. The new clause ought to say: "Where any person has been arrested, other than under the Prevention of Terrorism Act 1976, and is being held in custody"—I do not think we need bother about the "police station or other premises"—
that person, on so requesting that a person of his choice shall be informed, shall be entitled,
and so on. Alterations need to be made in order to give effect to what I have argued.
I have intimated to one or two of my Conservative colleagues that the new clause seemed to have a good deal of reasonable substance in it, and I hope that in general it will commend itself to the House.

Mr. Christopher Price: I hope that all parties in the House will join together in supporting the new clause as a matter of sheer common sense, realising that at the root of it is the sort of substance for which this whole House of Commons exists. If we cannot come together across these Benches to support an absolutely basic clause such as this—a clause providing that someone who has been arrested should be allowed to inform

those who know him that he has been arrested—I do not think we have the right to get up in those other fora of the world and say that we are not as other men are and that we are better than they are.
7.15 p.m.
I welcome the support of the Liberal Party, if the hon. and learned Member for Montgomery (Mr. Hooson) will get back to his Bench for the moment. I have mixed feelings about the Lib-Lab pact, but if the Lib-Lab pact means anything to me—

Mr. Corbett: My hon. Friend should tell his mother—

Mr. Deputy Speaker(Sir Myer Galpern): The hon. Member for Islington, South and Finsbury (Mr. Cunningham) asked us all at one stage to close our ears to what he was about to say in addressing the Home Secretary. We have not had such a request from the hon. Member for Hemel Hempstead (Mr. Corbett). I have just heard what the hon. Member has said, and it has nothing whatever to do with the new clause.

Mr. Price: If the Liberals believe in civil liberties of the sort that are deep in the heart of the Labour movement, it is on this issue more than anything else that they should be able to come together with us and tell a slightly reluctant Cabinet, who are over-worried about other things and need not be, that the very least—

The Secretary of State for the Home Department (Mr. Merlyn Rees) rose—

Mr. Price: The Home Secretary can wait. The very least we can do in this unusual sort of period in British politics is to find issues such as this clause, on which we can come together in a truly democratic parliamentary way, and tell the Government "Sorry, mate, but we are going to pass this". I very much hope that that will be the spirit in which the Liberals will approach this issue.

Mr. Hooson: If the hon. Gentleman is intending to divide on the new clause, we shall be supporting him.

Mr. Price: That may well happen. Perhaps we may also have the support not simply of the Liberals but of some of the Conservative lawyers who, as


professionals, profess to be in favour of the liberties of the subject. We should like to see them in the Lobbies as well.

Mr. Rees-Davies: If the hon. Gentleman is not too slow in the matter, I, for one, will certainly be there.

Mr. Price: Whatever other hon. Members may feel about the hon. and learned Member—

Mr. Deputy Speaker: I hope that the hon. Member for Lewisham, West (Mr. Price) will not advise everyone in the Chamber to give his testimony on the new clause.

Mr. Price: You are aware, Mr. Deputy Speaker, of the rigour with which I stick to the subject. If the hon. and learned Gentleman and I happen to be in the same Lobby, it will not be for the first time. I will leave it at that.
My interest in this issue stems from the fact that by the accident of constituency representation I happen to have been involved in what was probably one of the worst miscarriages of justice in the present decade. If the proposed new clause had been passed into law it would not have happened. I refer to the Confait case, and I will briefly remind the House of the circumstances.
Three young men in my constituency, of whom one was mentally retarded and another fairly mentally retarded, signed confessions in a Lewisham police station to murdering a man. They were convicted and lost their appeal. Over two years later they were released by the Court of Appeal, after a long, difficult, and at times nasty campaign that I had to wage with the Home Office to send the matter back to the Court of Appeal.
As a result of their release, the Home Office set up an inquiry under Sir Henry Fisher, a very distinguished ex-judgethe—the only one who has ever packed it in at mid-term because he could not stand his colleagues. The report of that inquiry is not quite ready. It is very nearly ready, I understand. When it is, I think it will have a great deal to say on the subject of the new clause that is before us.
Substantially as a result of that case, as well as the efforts of my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), the Home Secretary—all credit to him—has been

constrained to announce a Royal Commission on pre-trial procedures to investigate all these matters.
This point of informing one's relatives and lawyers that one has been arrested does not relate solely to the fact that one has been arrested. It relates to many other procedures. If one is held in a police station after arrest, many other things are going on. One of the scandals of our legal system is the system called "verballing". The worst thing is to get people to sign confessions to things they did not do—as the three young men in the Confait case did. This goes on every day. It is going on tonight in London police stations and it will go on every night from now on.
If this information could be given to relatives, fewer of these confessions, which should be inadmissible, would take place. Such confessions are now inadmissible in the United States since a case in the 1960s, very like the Confait case, called the Miranda case. That became the same sort of public scandal, and as a result confessions in police stations in America are inadmissible without corroboration. If that were the case here, the police would not face the same temptation to arrest people, hold them incommunicado and extract confessions from them. That is the route that we must follow one day.
I am frightened that, in the area of London which I represent, the events of the Confait case are being replicated five years later. Hon. Members may have heard of the "Lewisham 21". This case has been made notorious through the accident of Prince Charles a few weeks ago visiting a club in Lewisham where concern was being expressed about these arrests. They are now called the "Lewisham 24" because, after subsequent demonstrations, three more people have been arrested. The National Front has since announced that it will hold its biggest rally ever in Lewisham, so it could be the Lewisham 121 within the next few weeks. I am writing to my right hon. Friend about the matter and I hope that he will take this problem seriously.

Sir M. Havers: On a point of order. We have a huge number of amendments to deal with. I hope that hon. Members on both sides will keep their comments to


the matters under debate. Many extraneous matters have been brought in. We have heard about the Confait case many times tonight, but the list is enormous. I ask you, Mr. Deputy Speaker, to persuade hon. Members to keep to the amendments under discussion.

Mr. Deputy Speaker: I am obliged to the right hon. and learned Gentleman. I was beginning to as:k myself how far the signing of inadmissable confessions and so on had anything to do with the new clause, which is pretty narrow. One can makes passing references, but I would support the plea of the right hon. and learned Gentleman. With so much on our plate tonight, if speeches are too long, we might not be finished before midnight, which would be very difficult.

Mr. Price: Thank you, Mr. Deputy Speaker. I take the point of the right hon. and learned Member for Wimbledon (Sir M. Havers), but it is a traditional right that hon. Members should be able to raise scandals which have occurred in their constituencies if they are relevant to the debate. That is all that I seek to do.

Mr. Deputy Speaker: Order. I appreciate that point of view, but the individual who determines relevance is not the hon. Member who has the Floor but the occupant of the Chair.

Mr. Price: I will always bow to your ruling, Mr. Deputy Speaker.
The new clause would provide that those arrested should have the right to inform a solicitor, a relative or both. A few weeks ago, 21 young black males were arrested in the early hours in my constituency in circumstances exactly relevant to the new clause. I will talk about the experience of just one of them—a boy called Colin Jackson, who is 16 years old. I happen to know his experiences intimately because I visited him in Wormwood Scrubs at 4 o'clock yesterday afternoon.
Colin Jackson was held for well over 24 hours after his arrest. His repeated requests to tell his mother and father—he is only 16—were refused. He made other allegations about what happened during that time, but I make no reference to them now. Finally, he was brought into court without his mother and father being informed where he was.
At that point, we see what happens under the English system. Along with the others, Colin Jackson was asked whether he wanted legal aid. Some of them said that they did not want legal aid. Only one solicitor was in court—no one knows why it was only one—and Colin Jackson accepted his services. When he came up for remand the second time, that solicitor was not present. When he came up for remand today for the third time, he asked to change his representation but he was refused permission on the grounds of undue public expense.
That is just one of 21. The other 20 have had different experiences since being arrested several weeks ago. That is an example of what happens to young black people. Race relations in Lewisham are not easy. The situation worries many people. When that happens and when people know what has happened to these young people who have been accused of conspiracy to rob over 18 months, whether they are guilty or not, in an area where racial tension is at its height, that is not a welcome situation. It is a situation that we should rectify by changing the law and the Judges' Rules.

Mr. Deputy Speaker: Order. I have allowed the hon. Gentleman a great deal of latitude, but he knows the course that he should take if he wants to change legislation. The new clause has no relevance to what he has been asking for.

7.30 p.m.

Mr. Price: With respect I am speaking to a new clause which, if passed, would allow people who are arrested to inform their solicitor, their parent or a friend. The only point I am trying to make is that the lack of this facility exists on a widespread scale and the dangers involved for the community are very much wider than anybody believes.

Mr. Apse: The whole House is listening with sympathy and concern to my hon. Friend. But how can this clause deal with the mischief? From what my hon. Friend is saying I would think that what is required is that solicitors should have access without excessive delay to those inside, and that it is not enough that there should be communication from outside. I do not think that the clause is designed to meet the mischief that my hon. Friend has described.

Mr. Price: The clause has an effect in this way—if the young man to whom I have referred had had the ability to tell his parents where he was, and he is the sort of young man who had needed solicitors before, he could have contacted a particular solicitor by making one single phone call. That solicitor would have been in the court at the relevant time and would have been representing him today. This is not the case because the clause that we are discussing is not part of the law.
This new clause is an innocent looking clause but it goes very much wider than it appears to go. It is fundamental, particularly in relation to the Judges' Rules. It is an attempt to make the Judges' Rules more clear. My hon. Friend has described the particular way in which the Home Office changed the Judges' Rules without telling Parliament in a clear enough way, and in an earlier intervention I described the way the Home Office changed them in another way.
This new clause is absolutely essential if we are to move towards a situation, which we shall have at the end of the Royal Commission, in which the Judges' Rules become part of the legislation passed by this House, and no longer are something that the police can choose either to conform with or ignore at whim.
I make a final plea to the Home Secretary, whom I much admire. I know that he has set up the Royal Commission, and that he could say that it will deal with these problems. But it could well be five, six or even seven years before anything that the Royal Commission says is passed into law. I appeal to my right hon. Friend to agree to this minor but very fundamental reform as it is essential that it should take place in this Bill. Even if the new clause is slightly defective, there is another place, and there will be opportunities to tighten it up. I plead with him not to rule it out of hand at this stage, and I urge him to meet the points that I have made.

Mr. Walter Clegg: The House owes a debt to the hon. Member for Islington, South and Finsbury (Mr. Cunningham) for raising this subject, which has generated much interest on both sides of the House. There is a great deal in his arguments. I did not quite

understand his reference to the caucus and the obligation given to the Home Secretary, and I suppose it will pass over the Home Secretary's head.
As a practising solicitor I have a great deal of sympathy with the objectives of the clause. But, as has been pointed out already, it is defective in that without some sort of time limit it will not achieve its purpose. As long as some communication is given, however late it may be, the police can easily comply with it technically, but not in the way which the House wants—that is, the early notification of someone outside that a person has been arrested.
From my own experience I know that great distress can be caused when people, particularly young people, are held in custody and no notification is given. Their relatives, especially their mothers, can spend a lot of time telephoning hospitals and wondering what has happened. The police are very foolish not to notify the parents of the person involved.
Obviously there is very strong feeling in the House. I hope that the Home Secretary will say that something can be done between now and later stages of the Bill to give effect to the intentions behind the clause, unless he has very good reasons for not doing so. It is difficult to vote for the clause as it stands because it is a legal nonsense.

Mr. George Cunningham: On the point about timing, although it is preferable for immediacy to be built into the clause, the combination of the clause as it stands and the Judges' Rules as they stand will ensure that notification would have to be sent immediately. So there is not so much of a defect as the hon. Member suggests.

Mr. Clegg: I am not certain that I agree with the hon. Member. As the clause stands it says:
he shall be entitled to have intimation of his arrest and of the place where he is being held sent to a person of his choosing".
It does not say how notification must be sent—it could be sent by second-class mail or pigeon post. It is defective and it needs to be put right. We shall listen very carefully to the Home Secretary and we shall want very good reasons why something similar cannot be imported into the law.

Mr. Frank Hooley: I support the new clause very strongly. The technique of holding a person incommunicado cannot rank, strictly speaking, as torture, but the psychological pressure of it is of an acute and savage form. There is no doubt at all that a person's mental attitude and behaviour on arrest will change quite sharply if he knows he is able to tell somebody even if it is only a relative.
The only particular case that has been brought to my attention concerns a young West Indian boy who took his girl friend home one Saturday night. After leaving her he was standing at the bus stop waiting to go home when he was pounced upon by the police who claimed that he had been involved in a series of burglaries. He was carted off to the police station and interrogated, arid then taken to another police station where he was kept for several hours. The police went to his home and searched it without a warrant. They made no attempt to contact his parents or to allow him to do so. In the event, someone else was arrested for the crimes and that young man was acquitted.
A great many young people in these circumstances could make a statement or remarks that would incriminate them. This is particularly so in circumstances where they had no opportunity to inform anybody of their whereabouts or what was happening to them.
It has been said "If this provision is enacted, how shall we ensure that the police observe it?" They do not normally tell the person in question "You have a right to see somebody" and let it go at that. If this right is not embodied in a statute and is not complied with, any subsequent proceedings or prosecution would presumably become invalid. It is important to have this provision in a statute and not as part of the Judges' Rules or included in informal understandings between the Home Office and the police.
For that reason, if the Home Secretary does not accept the clause, I hope that it will be pressed to a Division. There may be defects in drafting and the clause may need to be tidied up, but it is right that there should be immediate, quick communication with somebody else by the person who has been arrested. That surely should be part of our statute law.

If the proposal is resisted by the Government, I shall be prepared to vote in favour of the clause.

Mr. F. P. Crowder: I, too, wholeheartedly support the spirit behind the clause. Some hon. Members have given support to this provision and have mentioned isolated cases, but isolated cases do not make good law.
I should like to mention one matter relating to the wording of the clause. I refer to the phrase
he shall be entitled to have intimation of his arrest".
I do not think that the word "entitled" is sufficient.
I have in mind the words of the caution. It is sometimes forgotten that the words of caution are also words of advice. The caution runs as follows "You need not say anything unless you wish to do so, but anything you say will be taken down and may later be given in evidence". The proper advice to give to a client who is likely to be arrested is that in answer to that police officer he should say "I take your advice. I wish to say nothing at this stage. I have a complete defence to this matter and I wish to see a solicitor." Not many people have the common sense to say that, but if they had received that advice in the first instance it would have been of great advantage to them. I should like to see something on the lines of the words of the caution included in the wording of the clause in respect of the word "entitled".

7.45 p.m.

Mr. Douglas-Mann: I should like to say a great deal about this clause, but I am content with what was said by my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham). I believe that it would be preferable to include the word "immediate" because the clause makes sense only if it is to be implemented speedily. If somebody is to be notified that must imply speedy notification. Therefore, I hope that the clause will be able to be improved in another place. I hope that it will be accepted by the Home Secretary, but if that is not the case I hope that it will be carried by the House.
I accept that there may be exceptional cases that cause difficulty, hut the vast


number of cases involve people who are picked up on petty charges—many of them young people or coloured people. They are often held in a police station and not given the opportunity to notify their families or get in touch with solicitors. Occasionally there are serious cases involving major frauds in which it would seriously interfere with the conduct of an inquiry if person X knew that person Y had been arrested. The Government could introduce an amendment in the other place to enable the police in exceptional circumstances to apply to a magistrate before making an arrest in the same way as happens in regard to search warrants. I see no fundamental objection to that course.
The Judges' Rules suggest that the police cannot compel anybody to go to a police station and they lay down that any person who is taken to a police station should be able to communicate with and consult privately with a solicitor. They also lay down that the police officer who is making inquiries should prefer a charge as soon as he can. However, those principles are consistently ignored by the police and, for the most part, the courts ignore the fact that the police ignore them.
I hope that if this clause is included in the Bill it will enable the court to take a different view in future. A recent case established that the fact that the principles of the Judges' Rules were ignored invalidated a confession that was made. I trust that if these provisions are incorporated in the Bill the courts will take the view that prosecutions in which those principles are ignored will not be supported by the courts.
I hope that my right hon. Friend the Home Secretary will be able to give assurances to meet the wishes which have been expressed in this debate. It would be a great shame if a Labour Government were to reject this serious proposal which has been backed by experienced hon. Members in all parts of the House. I appeal to my right hon. Friend, no matter what his brief says, to reconsider the matter and to accept the clause as it stands—or certainly to consent to the spirit of it for action when the Bill reaches another place.

Mr. Graham Page: I wish to support not only the purpose of the clause

but its drafting. We have all received complaints from constituents whose relatives have been arrested and who have been unable to communicate with their families. We should put that situation right.
On the subject of the drafting of the clause, I think that it is sufficient merely to say that a person so arrested is entitled to an intimation of his arrest being given to a person of his choosing. The word "entitled" means that he has that right. The clause does not deal with the necessity to have somebody present when a statement is being taken or anything of that nature, because there would be certain objections in that respect. All it does is to ask that the person who is arrested shall have a right to communicate with his family, because those are the cases which arise so frequently.
The clause is narrow, but it is worthy of support. Furthermore, I believe that it is correctly drafted, which will enable it to operate effectively.

Mr. Merlyn Rees: This is an important issue and I shall give it my full attention. I must say at the outset that at our present pace we shall still be sitting here at this time tomorrow evening.
My hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) asked me to depart from my brief. I must tell my hon. Friend that that is not the best way to get anywhere with me. There is a slight romanticism and a touch of inexperience about the way in which my right hon. Friend put that point. I fully appreciate the concern in the House on this matter. I intend to deal with this issue—and I am doing so—at the end of a discussion which has taken some time.
I must point out to my hon. Friend the Member for Lewisham, West (Mr. Price) that I certainly cannot reply on the basis of "Come on, mate." A Home Secretary cannot follow that approach. There are wider considerations that we must take into account and this cannot be approached in a frivolous way—if that is the right word. [HON. MEMBERS: "Wrong word."] I cannot follow the "Come on, mate" approach.
The Confait case argument that has been put forward is not relevant to the new clause. Although it is, of course, my job to listen, I must point out that


the Sheffield case, which has been drawn to my attention before, was also irrelevant to the new clause in the way that it is drafted. So was the case of the Lewisham 24.
I must consider the merits of the new clause as it is drafted and we must consider the wider implications for the future. Nevertheless, I am sensitive to the mood of the House.
We are here discussing one part of the Judges' Rules. Some hon. Members are asking us to enshrine in statute law not the whole of the Judges' Rules but one part of them. That is a problem that we must consider, because the Judges' Rules are not law. We should be faced with some Judges' Rules having no statutory force and others that, even if they were correctly drafted—

Mr. Hooley: If I understand correctly, the Judges' Rules, as at present interpreted, do not include the provisions of the new clause. Is that so?

Mr. Rees: I shall answer that in a moment. We are here talking about one part of the Judges' Rules.

Mr. Graham Page: Surely the judges' Rules deal with the effects upon eventual trial, evidence to be adduced, and so on. That is not what we are talking about. We are talking about the notification of a man's family.

Mr. Rees: My hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) was quite properly concerned about trying to bring some aspects of the Judges' Rules into statute law on the basis of what is done in Scotland. Generally speaking, the Judges' Rules are concerned with the admissibility in evidence against a person of written or oral answers given by that person to questions asked by police officers and of statements made by that person. The rules set out the principles that the court will normally apply in deciding whether to admit evidence of what happened during a police interview. They do not bind the judge, who has overriding discretion to reject evidence or to admit it, even though it may have been obtained in breach of the rules. This has a bearing on the matter, because for some years now in this country we have used the

Judges' Rules. I must therefore examine the existing system.
Lord Devlin said, in essence, that a judge must be satisfied that no unfair or oppressive use had been made of police power. If so, a judge may reject the evidence, notwithstanding that there is no rule that specifically prohibits it,

Mr. Stan Thorne: The Home Secretary is confusing this to the extent that what he says makes no sense at all. There is no evidence involved in discussion of the new clause. We are talking about a person being arrested and someone being informed. We are not talking about the examination of evidence or anything connected with that.

Mr. Rees: With respect, we are talking about that and it is so important that we should consider it. The Judges' Rules were made for the guidance of the police and not for the circumspection of the powers of the judiciary. The aspect that has been raised is part of the Judges' Rules, as I am sure hon. Members will agree.
The matter has been considered before. The eleventh report on evidence produced by the Criminal Law Revision Committee in 1972 review this precise point. That report said that there had been very few suggestions that the rules, or parts of them, should he made statutory. The committee was against making any of the provisions statutory.
That is the background and the point to which I must address my mind. The position with the Judges' Rules now is that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. That is so, even when a person is in custody, provided that in such a place no reasonable delay or hindrance is caused to the process of the investigation or the administration of justice by a person so doing. It is that aspect of the Judges' Rules that my hon. Friends have been concerned to change during the past two years.
The Judges' Rules are relevant. My hon. Friend the Member for Islington, South and Finsbury has addressed his mind to one part of them and he wants —in a way that I shall deal with in a moment—to put them into statute law.

Mr. Rees-Davies: The Home Secretary may remember that I pointed out in my speech that he would confuse himself. We are not concerned in the new clause, with the rights of the police to interrogate. If the Home Secretary would be good enough to direct his acute mind and attention to the point he would sec that it does not involve the Judges' Rules. The new clause refers what happens earlier, before the Judges' Rules come into play.
The Home Secretary must take the point that we are purely concerned with the right to notify relatives. A relative or a lawyer should be able to receive word, but we are not saying that they should have the right to go in and interfere with police duties. If the Home Secretary will direct his attention to that point, he will have the House with him.

Mr. Rees: If I put my acute mind to the point I should point out that the Judges' Rules say that every person at every stage of investigation should be able to communicate. I am right and the hon. and learned Gentleman is wrong in that sense. We are talking about any stage of an investigation and the matter is clearly set out in the Judges' Rules.

Mr. Mikardo: If that is so, why was not a 16-year-old boy allowed to tell his mum where he was?

Mr. Merlyn Rees: I shall come to the point that the existing system raises such problems as my hon. Friend has brought to my notice, and it is proper that I should.
I should like to refer first to the wider aspects. Since I have been at the Home Office I have been concerned with the wider problem. I have been concerned with the whole of the prosecution process and just not just one part of it. The Prime Minister has set up a Royal Commission to look into the prosecuting process. There will be wide consideration that will take some time, but it is most important that we should look at the matter in depth and that the wider aspects should be considered. Without departing from what I have been trying to do on this, it is most important that we should not make changes piecemeal.
The matter was looked at in 1972 and has been under consideration by Justice for some time. There is con-

cern about it and the Royal Commission was set up, in that spirit, to look at the whole matter in depth. Many of the arguments that have been made in the debate will be taken into account by the Commission.
Of course we need to look at police procedures in the investigation of crime as well as considering the legal aspect. Difficult and complex issues are raised and the Royal Commission, the House and I, irrespective of what happens to the new clause, will have to balance these aspects.
There have been a number of suggestions and the new clause is another. It is my strong view that the Royal Commission is the right approach on these wider aspects and I am supported in this by the recent article by Professor Michael Zander. His view about the prosecuting process was something that I thought I should take into account.

8.0 p.m.

Mr. Thorne: What other parts of the Bill does my right hon. Friend feel it would be proper for the Royal Commission to consider—or are there no other such parts? Is he satisfied that everything else in the Bill is of no concern to the Royal Commission?

Mr. Rees: My hon. Friend is exactly right. This is the one part of the Bill that the Royal Commission will be considering. We are not dealing with a prosecuting process Bill. My hon. Friend has hit the nail on the head and I am grateful to him.
My hon. Friend the Member for Islington, South and Finsbury has been arguing his case since before the setting up of the Royal Commission, but he seeks, in advance of its report, to give an arrested person the automatic and unqualified right to have intimation sent to a person of his choice. It is important that I should make clear that this is not a minor and uncontroversial matter.
As a general rule, arrested persons should be able to inform their solicitors and relatives of their arrest. Despite what has been said in the debate, I have no reason to believe that there is an overwhelming number of cases in which people are held incommunicado. However, if there are the number of cases that have been put to me during the debate—even though they are not strictly relevant to


the new clause—this is obviously a matter to which I should put my mind.
However, intimation in the way suggested in the new clause could allow people to flee and make things very difficult for the police investigating a complicated robbery in which arrangements in the event of one of the gang being caught have been worked out in advance.

Mr. George Cunningham: This is a serious question. If such a provision would be disastrous south of the border, why does it work north of the border where they have just as many criminals who are just as clever but just as many of whom get caught?

Mr. Rees: I shall be coming to the position in Scotland. I have been investigating how the statute law aspect applies there.

Mr. Corbett: Is my right hon. Friend suggesting that in the sort of robbery to which he referred the police would not arrest people on warrants and therefore avoid what he fears might happen if the new clause were approved?

Mr. Rees: It may be that the police have one man but do not know the identity of the others. It is not as simple a matter as my hon. Friend implies.
The new clause says, in effect, that, whatever the consequences, a person in custody should have an unqualified right to inform someone of the police station at which he has been arrested and the place of detention. As drafted, the new clause would allow no discretion to the police.
It is said that the law in Scotland can accommodate such provisions and therefore we should have them here. While making allowance for the claims made about the Scottish system, I have to say that we do not yet have exactly the same background to our law as Scotland has to its law. Section 19(1) of the Criminal Procedure (Scotland) Act 1975 has been read out already. Perhaps I may repeat it. It says:
Where any person has been arrested on any criminal charge, such person shall be entitled immediately upon such arrest to have intimation sent to a solicitor that his professional assistance is required by such person, and informing him of the place to which such person is to be taken for examination.

In Scotland the sending of intimation to a solicitor is for a specific purpose, namely, to enable him to have an interview with his client before he is examined before a sheriff or, in the case of Section 305 of the Act, before the first court appearance. It does not entitle the solicitor to an interview while the person is being questioned by the police. The interview may not take place until just before the sheriff's examination. The new clause, however, leaves the purpose of the intimation at large.
In Scotland an intimation has to be sent to the solicitor, but the new clause proposes that a person in custody in England and Wales should be entitled to have an intimation sent to any person that he chooses. It is not just a question of informing relatives or friends. It goes much wider than that. It is right to look at the Scottish aspect, but we should also consider what happens in other parts of the world.

Mr. Douglas-Mann: I apologise for having presumed that my right hon. Friend had a brief that was written before he had applied his mind to the problem. I am advised that in Birmingham the practice goes much further than what is proposed in the new clause. The Birmingham police allow solicitors to see their clients even in terrorist cases very much earlier than do police in other parts of the country. If this works in Birmingham, why should it not work in the rest of the country?

Mr. Rees: If it works in Birmingham without statute law, maybe it can work in the same way in other parts of the country. I am trying to respond to the House in the best way that I can and to take the feeling of hon. Members on all these problems. I referred to the practice in other parts of the world. The Australians, who, unlike the Scots, share our common law tradition are putting through legislation with the caveat that the police should have discretion in certain circumstances.
My reply has to be fairly wide because this is not an issue that can be dealt with in a five-minute answer to a debate.

Mr. Kilroy-Silk: My right hon. Friend says constantly that he wants to take the opinion of the House. Surely that has


been expressed clearly and forcefully from Left-wing and Right-wing Members on these Benches and from every conceivable political complexion on the Opposition Benches. There is a clear desire to have the new clause, however it may be redrafted in another place so that it may take statute form. Nothing that my right hon. Friend has said so far has obviated any of the arguments that have been put for the clause. Surely the best thing he can do is to accept the principle of the clause and to accept what the House has demonstrated to be its wish.

Mr. Rees: If the House is to do it this way, my job is to deploy the full argument so that at the end of the day it can decide whether it is the right thing to do.
As the clause stands it is not clear what would happen if the provisions were not observed. Would that have some bearing on the admissibility of evidence? Some of my hon. Friends may say that it does not bear on admissibility while others may realise that it does.
If it becomes statute law, is it intended that a police officer who does not observe the provisions will be liable to prosecution? Again, that is something that we must take into account. It would not be appropriate to enact a declaratory provision of this sort and then leave the results of breaching it in some sort of limbo.

Mr. Hooson: Surely the right hon. Gentleman can tell us of the effect of non-compliance in Scotland.

Mr. Rees: In fact the clause has been drawn in wider terms. The expression intimation "may be understood in Scottish law, but I am advised—my hon. Friend the Member for Mitcham and Morden is a lawyer operating south of the border and he will know the answer —that it has no meaning in law south of the border. It would have to be defined in England.
These matters have to be made clear if the clause is to become part of statute law. Does "intimation" mean all the things that have been said? Does it mean a personal visit or a telephone call, for example? If the intimation may be sent to a person of the prisoner's choosing, does that mean only one person?

Mr. Corbett: Surely that is clear.

Mr. Rees: My hon. Friend say that "person" is clear. If I had more time I could give him some information that would show that there may be doubt.

Mr. George Cunningham: It is intended to mean one person. If there is any doubt about that, a drafting alteration could be made.

Mr. Rees: There are a number of aspects to the clause that I believe could cause serious trouble. When my hon. Friends say that the spirit is all that matters, they must remember that we are dealing with an important piece of legislation that we hope will work out correctly. I believe that there are problems.
I am very much seized of the view of the House, which I cannot ignore. There are those who are concerned by the way in which one or more parts of the Judges' Rules are carried out by the police. I understand that, even though some of the points that have been mentioned are not strictly relevant to the provision that my hon. Friends want to see on the statute book. My right hon. Friend the Prime Minister has set up a Royal Commission to consider the wider aspects of these issues.

8.15 p.m.

Mr. Mikardo: My right hon. Friend has been more than generous in giving way and we are grateful to him for it. One part of his argument is that we should wait for the Royal Commission. In reply to an intervention from my hon. Friend the Member for Preston, South (Mr. Thorne), who suggested that there might be other parts of the Bill that should wait, he said that that was not the case. I invite my right hon. Friend to consider Clause 6(6), Clause 7(5). Clause 8(4) and Clause 9(6), all of which concern matters which fall within the purview of the Royal Commission. Why does he not delete those subsections?

Mr. Rees: My hon. Friend is wrong. They are not concerned with the prosecuting process. The Royal Commission is to deal with the prosecuting process.

Mr. George Cunningham: I hesitate to tell my right hon. Friend what the Royal Commission is about, but it is clear from his public statement that it is about the prosecuting procedure—for example.


whether we should have public prosecutors—and the pre-prosecution procedure.

Mr. Rees: It is concerned with the pretrial procedures.
As I have said, I cannot ignore the view of the House. There is no point in my doing so. It is clear that there is concern about the way in which the present system works, although in Birmingham, apparently, things are different. I believe that the best way to proceed is by means of the Royal Commission so that we may get these matters right.
I promise that I shall find a means of bringing before the House how the rules are laid down within the existing system. I happen to believe that to employ the procedure of another place in the next week or so would not get us anywhere. I simply tell the House that I shall take into account the view that has been made clear.
I cannot ignore the view that people are not treated as they should be during pretrial procedures. I shall find a means of ensuring that all the wider aspects of these matters are taken into account. I can only tell my hon. Friends that if they were to press the clause at this stage and we were to go forward:n that way, I do not believe that the House would be doing its duty.

Mr. Christopher Price: When my right hon. Friend says that he is willing to bring proposals before the House after giving consideration to these issues—we have had such promises before—is it possible for him to give us any sort of time scale within which he can commit himself to doing so?

Mr. Rees: In view of the comments to which I was listening, I was trying to think of a way in which I could respond quickly. I understand the feeling in the House and I want to respond to it. Obviously, I cannot commit legislative time. My hope is that there is a means of proceeding without legislation. I think that there is a way, but I am not ruling out the need for legislation. I cannot give a commitment, but I shall try to come before the House as soon as possible.
If it is the view of both sides of the House that the existing system, irrespective of major changes and despite Birmingham, is not working properly, that is something that I should act upon as Home Secretary. I can say no more than that.

I shall do what I can. I shall bring these matters before the House in a way that will enable the House to consider them. However, to proceed by means of the clause would, I believe, be wrong.

Mr. Abse: From the way that my right hon. Friend has developed his argument it would seem that he felt that there was unanimity against him in the House. Many of us understand that there has been confusion in presentation. On the one hand, we are trying to ensure that the man gets to trial and, on the other, that his solicitor is there to look after him. I think that there is confusion here.
We must insist that the Judges' Rules are carried out. That is what is being asked here. It is my right hon. Friend's duty, as the Judges' Rules are supposed to govern police procedure, to make certain that the police act in accordance with the Judges' Rules. It should be within his capacity, if he has sufficient vigour, short of bringing forward legislation, to put an end to the situation about which so many of my hon. Friends are complaining.

Mr. Rees: I think that there is confusion in the House about how the Judges' Rules are applied. This matter ought to be looked at in depth. That is why I proceeded in the way that I did.
Problems have arisen in some police stations. It has been argued that the Judges' Rules have not been carried out. I will find a way of bringing this matter before the House in advance of the fundamental overall change that I think the Royal Commission is all about.
If the House is not prepared to accept that undertaking, so be it. I suggest that to make a change of what is part of the wider prosecuting process in this way would be a mistake.
If my hon. Friends wish to press the clause, so be it. However, I think that they would be wrong. I understand the emotions and feelings that are aroused by this matter. I will find a way of coming back to the House of Commons on this issue.

Sir M. Havers: This debate has caused many hon Members—certainly me—some anxiety. The Judges' Rules were basically and primarily directed to court procedure and the admissibility of evidence. I suspect that these other rules about the


right to communicate have almost been grafted on. They are rights and liberties that had to be preserved and that was a convenient way of preserving them.
Some hon. Members have spoken with conviction about what constituents have told them of how they have been treated and forced into or prevented from doing this, that and the other. I suggest that one must always take with a large pinch of salt what someone may say in those circumstances. It does not necessarily follow that he is telling the truth.
I was not very happy with the Home Secretary's reason—that we must wait for the Royal Commission's report before making up our minds. We have already had an example of the Home Department being prepared to act in advance of the report on the obscenity laws. That had to be piecemeal legislation.
I am not satisfied that there has been enough consulation on this matter. I do not know how much consultation the Home Department has had with senior police officers, judges and others. We must obviously have consultation.
I think that everyone accepts that the wording of the clause is defective. We must have provision to guard against the villain who wants to warn another codefendant, as he might be, who is on the run or has not yet been arrested by the police so that he can get away. Some exception may eventually have to be provided for that occasion.
The Home Secretary took the Opposition to the very brink until his closing words when he said "I will find a means of bringing this before the House as soon as possible". That is a much better way than allowing a defective clause to be put into the Bill. Knowing the right hon. Gentleman to be a man who will honour his pledges, we are prepared to accept that undertaking and not to press the matter to a Division.

Mr. George Cunningham: I shall take only a few minutes, because we have spent quite a long time on this subject. I have tried to approach this matter in a non-emotional and technical way. The Judges' Rules do not confer the right that is in the new clause at the moment. We are talking not of a difficulty that arises because of the Judges' Rules not being

adhered to, but of a right that is not conferred by the Judges' Rules.
The Home Secretary posed a number of questions that he said the new clause left open. For example, he asked whether, if the clause were passed, it would mean that evidence was non-admissible. There is a simple answer to that. I suggest, as a non-lawyer, that that would be up to the court. If a person is assaulted within a police station, it is for the court to decide whether that assault is sufficiently germane to the evidence to warrant the non-admissibility of anything that he said.
My right hon. Friend asked whether a police officer would be prosecuted for a breach of this provision. My first comment is to refer to what happens in Scotland. There is a statutory obligation, but no statutory offence for breach. It would be a disciplinary offence if a police officer breached the statutory obligation. That deals with that point.
My right hon. Friend said that no one south of the border knew what the word "intimation" meant. I should have thought that even a lawyer understood what the word "intimation" meant. When a word has an obvious, commonsense, natural meaning, there is no need for it to be used as a term of art.
My third point to the Home Secretary —the right hon. and learned Member for Wimbledon (Sir M. Havers) touched germanely upon it—is that there is a great distinction between the very function and role of the Judges' Rules and the function of a provision such as is contained in the new clause. The Judges' Rules say "If you take statements in such and such a manner without feeding people, letting them sit down, and so on, we may not admit the evidence." That is a severe sanction to apply for relatively minor breaches.
That is why we should be prepared to take into statute not the Judges' Rules, but some actions that at the moment are dealt with only in the Judges' Rules and say "Apart from their position within the Judges' Rules, which govern admissibility. this needs to be done as a point of law." We do not say that if a person is assaulted inside a police station that is a matter only for the Judges' Rules. It is a criminal offence to assault someone inside a police station just as it is anywhere else. We say that, albeit it is relevant to the


Judges' Rules, it ought also to be relevant to the law of the land.
We have a problem. The support on both sides of the House that has been given to the principle of the clause has been very impressive. We cannot leave it that the House of Lords will take that support into account and produce something better than I have drafted. If the new clause does not go into the Bill, the House of Lords cannot put it or anything else in. If the new clause goes into the Bill, it is open to the Government, in the House of Lords, to endeavour to make whatever corrections are necessary to it.
If we put the new clause into the Bill, I suggest that that means that the House of Commons thinks not that precisely this wording is right, but that the principle is right. We want the principle to be given effect in the Bill before it receives the Royal Assent. I hope that hon. Members on both sides of the House agree with that proposition. I suggest that the clause should be put into the Bill, because we do not know when there will be another opportunity to achieve this end.
If this clause goes into the Bill and gets to the House of Lords, the Government may manage to persuade the House of Lords, which will not be difficult, that the clause is defective and that it cannot be remedied in time. The Government will have their chance then, and I hope that the Opposition Front Bench will take that into account.

Division No. 192]
AYES
[8.31 p.m.


Atkins, Ronald (Preston N)
Freud, Clement
Maynard, Miss Joan


Atkinson, Norman
Gould, Bryan
Mendelson, John


Belth, A. J.
Hooson, Emlyn
Meyer, Sir Anthony


Bldwell, Sydney
Howells, Geraint (Cardigan)
Mikardo, Ian


Bowden, A. (Brighton, Kemptown)
Hoyle, Doug (Nelson)
Miller, Mrs Millie (Ilford N)


Brown, Ronald (Hackney S)
Hughes, Robert (Aberdeen N)
Mitchell, Austin Vernon (Grimsby)


Callaghan, Jim (Middleton&amp;P)
Hughes, Roy (Newport)
Moats, Roger


Carmichael, Nell
Irving, Charles (Cheltenham)
Ovenden, John


Carter-Jones, Lewis
Janner, Grevllie
Page, Rt Hon R. Graham (Crosby)


Clemitson, Ivor
Jeger, Mrs Lena
Pardoe, John


Cook, Robin F. (Edin C)
Jenkins, Hugh (Putney)
Parry, Robert


Corbett, Robin
Johnston, Russell (Inverness)
Pavitt, Laurie


Crawshaw, Richard
Kellett-Bowman, Mrs Elaine
Penhaligon, David


Crowder, F. P.
Kerr, Russell
Phipps, Dr Colin


Cunningham, G. (Islington S)
Kilroy-Silk, Robert
Price, C. (Lewisham W)


Davies, Bryan (Enfield N)
Kinnock, Nell
Rees-Davies, W. R.


Dean, Joseph (Leeds West)
Lamond, James
Rhys Williams, Sir Brandon


Dempsey, James
Lee, John
Richardson, Miss Jo


Douglas-Mann, Bruce
Lestor, Miss Joan (Eton &amp; Slough)
Robinson, Geoffrey


Dunwoody, Mrs Gwyneth
Lewis, Ron (Carlisle)
Rodgers, George (Chorley)


Ellis, John (Brigg&amp;Scun)
Loyden, Eddie
Rooker, J. W.


Evans, loan (Aberdare)
Lyon, Alexander (York)
Rose, Paul B.


Evens, John (Newton)
McCartney, Hugh
Ross, Stephen (isle of Wight)


Fairbairn, Nicholas
McDonald, Dr Oonagh
Selby, Harry


Flannery, Martin
McGuire, Michael (Ince)
Silverman. Julius


Fletcher, Ted (Darlington)
Madden, Max
Skinner, Dennis


Fookes, Miss Janet
Marshall, Jim (Leicester S)
Smith, Cyril (Rochdale)

8.30 p.m.

We need at the moment a clear statement of what support there is for the clause in the House of Commons. if the Lords find that whatever tidying-up is needed cannot be done by them in the time available, the Government will have no difficulty in knocking the provision out in the House of Lords. If the clause is carried tonight, that is the only significance that ought to be attached to its being carried.

I appeal to the Opposition Front Bench, with whom it lies, to accept that a job has been done here in the House of Commons that it is our essential, key right to do. For God's sake do not undo it. It can be undone in the House of Lords if the difficulties prove excessive, but this is something like habeas corpus.

Let us put the provision into the Bill so that the principle is established. If it proves impossible to correct any blemishes it may have, they can be put right not only as a theoretical matter in the House of Lords but as a practical matter, too. I beg the Opposition to support it on that basis. No one will say that we have supported it on any other basis.

Question put, That the clause be read a Second time:—

The Clouse divided: Ayes 89, Noes 86.

Steel, Rt Hon David
Wainwright, Richard (Coine V)



Thomas, Ron (Bristol NW)
Whitehead, Phillip
TELLERS FOR THE AYES:


Thorne, Stan (Preston South)
Willey. Rt Hon Frederick
Mr. Andrew F. Bennett and


Thorpe, Rt Hon Jeremy (N Devon)
Wise, Mrs Audrey
Mr. Frank Hooley.




NOES


Anderson, Donald
Grant, George (Morpeth)
Ross. Rt Hon W. (Kilmarnock)


Archer, Rt Hon Peter
Hamilton, James (Bothwell)
Rodgers, Rt Hon William (Stockton)


Armstrong, Ernest
Hardy, Peter
Rees, Rt Hon Merlyn (Leeds S)


Bates, Alf
Harper, Joseph
Silkin, Rt Hon John (Deptford)


Bean, R. E.
Harrison, Rt Hon Walter
Small, William


Boardman, H.
Horam, John
Smith, John (N Lanarkshire)


Boothroyd, Miss Betty
Howell, Rt Hon Denis (B'ham, Sm H)
Snape, Peter


Brown, Hugh D. (Provan)
Hunter, Adam
Spriggs, Leslie


Buchanan, Richard
Irving, Rt Hon S. (Dartford)
Stallard, A. W.


Callaghan, Rt Hon J. (Cardiff SE)
John, Brynmor
Stanbrook, Ivor


Cocks, Rt Hon Michael
Jones, Barry (East Flint)
Stewart, Rt Hon M. (Fulham)


Coleman, Donald
Jones, Dan (Burnley)
Stoddart, David


Concannon, J. D.
Kaufman, Gerald
Stott, Roger


Cowans, Harry
Lipton, Marcus
Summerskill, Hon Dr Shirley


Cox, Thomas (Tooting)
McElhone, Frank
Taylor, Mrs Ann (Bolton W)


Dalyell, Tam
MacFarquhar, Roderick
Tinn, James


Davidson, Arthur
McGuire, Michael (Ince)
Wainwright, Edwin (Dearne V)


Davies, Ifor (Gower)
Mallalieu, J. P. W.
Walker, Terry (Kingswood)


Deakins, Eric
Marks, Kenneth
Ward, Michael


Doig, Peter
Marshall, Dr Edmund (Goole)
Watkinson, John


Dormand, J. D.
Mawby, Ray
Wellbeloved, James


Duffy, A. E. P.
Millan, Rt Hon Bruce
White, Frank R. (Bury)


Dunn, James A.
Morris, Charles R. (Openshaw)
Whitlock, William


Dunnett, Jack
Mudd, David
Williams, Sir Thomas (Warrington)


Ellis, Tom (Wrexham)
Mulley, Rt Hon Frederick
Wilson, Alexander (Hamilton)


Foot, Rt Hon Michael
Noble, Mike
Wilson, William (Coventry SE)


Ford, Ben
Oakes, Gordon



Freeson, Reginald
Palmer, Arthur
TELLERS FOR THE NOES:


Golding, John
Park, George
Mr. Ted Graham and


Gourlay, Harry
Radice, Giles
Mr. Joseph Ashton.

Question accordingly agreed to.

Clause read a Second lime, and added to the Bill.

New Clause 6

RIGHT OF PEACEFUL DEMONSTRATION ON THE HIGHWAY

(1) It shall be lawful for a person or persons to stand upon or walk along the highway and in the course of doing so to hold notices to offer written materials to passers by and to address passers by for the purpose of peacefully communicating information or views to other users of the highway provided no unreasonable obstruction or inconvenience is caused to other users of the highway or the occupants of premises adjacent to the highway.

(2) A person shall not be guilty of any criminal offence by reason only of the fact that he is acting in a manner provided for in subsection (1) above.—[Mr. George Cunningham.]

Brought up, and read the First time.

Mr. George Cunningham: I beg to move, That the clause be read a Second time.
I shall be brief. The new clause relates to the right of a person to demonstrate upon the highway when he is not doing so in pursuance of a trade dispute.

In fact, a person—at least this would be the commonly accepted view of the judiciary—does not have the right to demonstrate upon the highway except in pursuance of a trade dispute under trade union legislation, which has been spoken of a great deal in the House recently.
Many people demonstrate upon the highway with the permission of the police. No action, whether criminal or civil, is taken against them. I thought that it was significant that when the Home Secretary was making his statement on Monday of this week about Grunwick he said:
If people want to march in large numbers in this society, there is no way of stopping them.
He also said:
Those who wish to march peacefully to show their strong views have every right to do so."—[Official Report, 11th July 1977; Vol. 935, c. 30–1.]
I do not know whether the Home Secretary thought that he was talking of a moral or of a legal right. If he thought that he was talking about a legal right, he was expressing a view that would be shared by Lord Denning but not one that would be shared by most of the rest of the judiciary.
8.45 p.m.
The question that arises here is whether one ought to have the right to march and demonstrate on the highway in pursuit of purposes that have nothing to do with a trade dispute. I raise this issue because it was in my constituency in 1974 that the last famous case originated, when a number of my constituents chose to picket on the pavement outside the premises of an estate agent, protesting against the actions of that estate agent and their social consequences. They did so with the full knowledge of the police, who were present for most of the time, and they did so absolutely peacefully. There was never any violence at that location.
However, although the police took no action, the estate agents did. They applied for an injunction and sought damages for nuisance and also. I believe, for libel. The application for an injunction went to the High Court and later to the Court of Appeal. At the High Court the judge assumed that the law was what most lawyers have—I understand—always believed that it was: that a person has the right to pass and repass on the highway but does not have the right to use it for any other purpose. Later the case went to the Court of Appeal and Lord Denning, in his judgment in that case, made some remarks that I think are worthy of quotation. Referring to the decision in the High Court, which concluded that the right did not exist, Lord Denning said:
This ruling is of such significance that I do not think it should be allowed to stand. I see no valid reason for distinguishing between picketing in furtherance of a trade dispute and picketing in furtherance of other causes…I do not think there is any distinction drawn by the law save that, in the case of a trade dispute, picketing is governed by statutory provisions and, in the case of the other causes, it is left to the common law…Picketing is lawful so long as it is done merely to obtain or communicate information, or peacefully to persuade; and is not such as to submit any other person to any kind of constraint or restriction of his personal freedom".
He went on to refer to the important historical place that demonstrations have had in establishing other rights in our history. Those remarks, too are worthy of quotation, and I shall do so as briefly as I can:
Here we have to consider the right to demonstrate and the right to protest on matters

of public concern. These are rights which it is in the public interest that individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority—at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights. Most notable was the demonstration at St. Peter's Fields, Manchester, in 1819 in support of universal suffrage. The magistrates sought to stop it. Hundreds were killed and injured. Afterwards the Court of Common Council of London affirmed 'the undoubted right of Englishmen to assemble together for the purpose of deliberating upon public grievances'. Such is the right of assembly. So also is the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern. As long as all is done peaceably and in good order without threats or incitement to violence or obstruction to traffic, it is not prohibited…I stress the need for peace and good order. Only too often violence may break out: and then it should be firmly handled and severely punished. But, so long as good order is maintained, the right to demonstrate must be preserved.
It was therefore the view of the Master of the Rolls, Lord Denning—who is not a raging Socialist—that not only should the right exist but that it did exist. However, he was outvoted by the other two members of the Court of Appeal on that occasion as to whether that right existed. All these remarks were obiter. However, he clearly stated his view that the right should exist.
The situation now is most unsatisfactory. People demonstrate on the highway and meet outside embassies, Government Departments, grocers shops and what-not. It happens every day of the year in thousands of places up and down the country. It is not a criminal offence. At least, after the passing of this Bill it will not be a criminal offence. At the moment it is a criminal offence to arrange to do it—not to do it but to arrange to do it, because one is conspiring to do an unlawful act. That is being put right in the Bill.
It is unsatisfactory that people up and down the country are doing these things in large numbers, often shepherded by police officers in the doing of them, and liable at least to a civil suit for damages in respect of those actions if anyone cares to take it. We must tidy up that situation.
Secondly, it is undesirable that the right to do these things should be subject to


police approval. If we wanted to institutionalise that approval, as we do in the Public Order Act, that might be different, but at present it is a police approval which is informal and localised and subject to no code. Therefore, that is undesirable.
I want to see us establish it as the right of a person, as Lord Denning has said, to demonstrate on any public highway, so long as he does not cause inconvenience to other users of the highway and so long as people do not by their presence in very large numbers impose on those other users the fear of violence. That is a worthy objective, which is supported by one of our most eminent and respected lawyers. I hope that the Government will say that they accept the principle in this proposal and that they will find some means of giving effect to it in some legislation in the not-distant future.

The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson): I agree with everything that my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) said about the right to demonstrate and picket peacefully. I yield to nobody in my regard for this important civil liberty matter.
However, my hon. Friend's new clause has certain defects. He mentioned the existing law. If it has one virtue, it is that it is very simple—

Mr. Greville Janner: Simply awful.

Mr. Davidson: —if not entirely satisfactory. I go further, to please my hon. and learned Friend the Member for Leicester, West (Mr. Janner), and say that it is far from satisfactory
.
The existing law is to be found in Section 121 of the Highways Act 1959, which simply states:
If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he shall be guilty of an offence".
Sometimes simple words in a statute lead to confusion. The word in that Act that has given rise to great confusion is "obstruction". There is the question when a particular act constitutes obstruc-

tion. I think that my hon. Friend is trying to clarify what "obstruction" is and to make it much clearer to the person who wishes to exercise his right to picket in which circumstances he will be creating an obstruction. I think that that is why he uses the word "unreasonable".
My hon. Friend mentioned the Prebble case. He has mentioned it to me over the years and we have had long discussions about it. I agree with his view of it and have agreed with that view for a long time. I do not think, however, that he ought to over-exaggerate the significance of the Prebble decision. It was only deciding an interlocutory matter—whether an injunction should be granted —and the substance of the law was not considered by the lower court or by the Court of Appeal.
I think my hon. Friend will agree with me when I say that since the Prebble case—and, indeed, before that case—there has been no great difficulty. Most of us on both sides of the House have been involved, I suppose, in demonstrations of one sort or another. Most of us have given out leaflets on the footpath, whether objecting to a zebra crossing being built or perhaps on some more politically motivated matter. None the less, we have all indulged in it.
One of the difficulties with my hon. Friend's new clause is that it does not distinguish between non-industrial picketing and industrial picketing. In addition, it does not amend Section 121 of the Highways Act 1959. If the new clause were passed we should have both provisions—the new clause governing picketing and also Section 121. That would cause even more confusion than my hon. Friend claims is caused by the present law.
As my hon. Friend knows, my right hon. Friend the Secretary of State for Employment announced this week that he would be examining the law concerning industrial picketing. I give my hon. Friend a similar undertaking. My right hon. Friend the Home Secretary is now considering the law concerning non-industrial picketing in the same manner and with the same sense of urgency. I hope my hon. Friend will accept my assurance that there is proper concern about the matter. I am certainly concerned about


it and would like to help him. In view of that undertaking—

Mr. George Cunningham: May we take it that there is to be a review of industrial picketing, which will be the responsibility of the Department of Employment, that at the same time there will be within the Home Office a review of non-trade union picketing, and that: in the light of both reviews there might well be some outcome which will be common to both?

Mr. Davidson: That is exactly the position, and I certainly give my lion. Friend the undertaking.

Mrs. Elaine Kellett-Bowman: I hope that the Home Secretary, when bringing in any further legislation or examining any subject, will not put further burdens on the police. However peaceful a procession may be when it is wandering down the highway, the police must always be there in relative strength in order to ensure that nothing other than peaceful persuasion or the thrusting of documents under people's noses takes place.

Mr. Davidson: That is exactly the sort of matter that ought to be considered. No one, I am sure, would suggest that it is easy to arrive at a definition which will protect the right of people to walk peaceably along the street and the right of people to demonstrate peacefully. These are exactly the matters that my right hon. Friend will be considering. I hope that at the end of the day, in both the industrial and the non-industrial areas, sensible legislation can be introduced.

Mr. Grieve: I hope that in this inquiry or review the Home Secretary will also have regard to the undoubted right of Her Majesty's subjects not to be stopped if they do not wish it, not to be spoken to if they do not wish it, and not to have their vehicles boarded if they do not wish it. I hope that he will have regard to the right of Her Majesty's subjects to go about their own business as they please, without embarrassment from other people.

Mr. Davidson: With great respect to the hon. and learned Gentleman, that is exactly what I said that the review would be considering. I should have thought that it was a matter of obvious common

sense that such a review ought to consider matters of that sort.

9.0 p.m.

Mr. Greville Janner: If anyone wishes to demonstrate or to picket in this country at the moment, he does so entirely by courtesy of the police. This is not just a question of obstruction under the Highways Act. If he cannot be charged with obstructing the highway he can be charged with obstructing the police if the police ask him to pass along and he does not do so. The only way in which one can demonstrate within the law is to take a placard, remove oneself a reasonable distance from anything that one wants to influence and walk around in a brisk circle—providing that the police do not come along. If one demonstrates or pickets in any other way, one may be able to rely, if it is industrial picketing, upon one clause of the Employment Protection Act, but one is still liable to prosecution for obstruction if one stops or if a policeman considers that one should move along.
I congratulate my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) on his new clause, if only because it has produced an excellent and helpful undertaking from the Minister. I introduced a Ten-Minute Bill after the Islington incident. It went the way of all, or nearly all, Ten-Minute Bills, but it had the joy of all kites that sometimes they fly home in another direction. If this new clause is introduced in another Bill as part of a general review of picketing, it will have done a proper service.
I would add one warning. We can introduce whatever laws we like about picketing and demonstrations, but if they are not acceptable to the mass of the people for whom they are designed, those laws will be ignored. This is not a threat from a lawyer who is against the rule of law; it is merely a suggestion that we should not forget the lessons of the Industrial Relations Act—that one can pass laws banning anything one wishes but if people feel that the laws are unfair and that they are being trodden down, in this free country of ours they will rise up and ignore the law. If we wish the rule of law to survive and to be strengthened, we should be careful which laws we pass to regulate picketing


and to place apparent restrictions on people's right to march or demonstrate.
I hope that we shall give people a right to stop, to talk, to hold up their banners, to attempt, as the Islington people did with the estate agents, to influence the public or foreign embassies and to hold up to the light of day injustices at home or abroad without the local police having to bear the responsibility of deciding on each occasion whether to permit them to do so. The law as it stands is wholly unsatisfactory. We must be careful that by changing it we do not make it worse.

Mr. Clegg: I had not intended to intervene, since I understand that the hon. Member for Islington, South and Finsbury (Mr. Cunningham) is likely to seek to withdraw the clause in view of the Minister's undertaking. I have been brought to the Dispatch Box by the speech of the hon. and learned Member for Leicester, West (Mr. Janner), who drew some rather wild conclusions. Following his argument, anyone who got a mob together to defy the law, no matter what their purpose—even if it were purely to cause mayhem—the law would not apply, so it would be broken and brought into contempt for almost any conceivable reason. I do not think that that is what the hon. Member for Islington, South was getting at.
There is great concern about picketing. To many people, it has become a dirty word, and Parliament must be careful how it handles the matter. Whether we have limitations or not, it certainly needs careful consideration. There is grave feeling in the country, as well as in this House, among those who are subject to picketing and those who want to picket. The Minister's suggestion that we should take a calm view is probably the best course that the House can adopt at the moment.

Mr. Mikardo: In one of my characteristic one-sentence, one-minute speeches I shall remind the House that by far the largest-ever example of demonstrations and picketing for a non-industrial purpose in my lifetime was the activities about 30 years ago of the Housewives' League, a front organisation of the Conservative Party. At that time there were no protests or expressions of solicitude for the

police from any hon. Gentlemen, or, for that matter, any hon. Ladies opposite.

Mrs. Kellett-Bowman: Women are better behaved.

Mr. Mikardo: The hon. Lady should have seen them. She never saw them. She is too young.

Mr. Hooley: I am not concerned with the estate agents or the foreign embassies. They have plenty of money and are well able to look after themselves. I have taken part very often in handing out leaflets and in stopping people and talking to them on pavements during demonstrations against apartheid and other things.
However I am rather worried about the impact of this new clause on private residents living on a fairly busy road or corner who found that every Saturday there were demonstrators outside their homes causing a nuisance. Presumably such families would have no remedy. They could take civil action, but obviously that is something that cannot be done by every family in the country. It takes time and money, and by the time civil action was taken against one group, a man could be landed with another lot of demonstrators.
A person in this situation cannot go to the police and ask them to move the demonstrators on. The police would say that under the law these people were perfectly entitled to be there. Therefore I wonder whether this new clause, or something like it, might not be exposing perfectly innocent people to some form of inconvenience that they do not want, and against which they have no remedy at all.
I am worried that if we give blanket and indiscriminate power to demonstrate and hand out leaflets in this way, it could cause inconvenience to people whose homes are sited at particularly strategic places.

Question put and negatived.

New Clause 12

AMENDMENT OF CHILDREN AND YOUNG PERSONS ACT 1969

'(1) In section 1(3)(c) of the Children and Young Persons Act 1969 at end add—

"(c1) a residential care order; or
(c2) a secure order; or".

(2) In section 7(7)(c) of the Act at end add—

"(c1) a residential care order; or
(c2) a secure care order; or".

(3) In section 20(1) of the Act (Orders for committal to care of local authorities) at end add—
In this Act a residential care order means a care order requiring the local authority into whose care a person is committed by a residential care order to accommodate the person in a community home for a period specified by the court and not exceeding two years at the end of which period or of any lesser period as specified by the court the person shall continue in the care of the local authority subject to the provisions of section 21 of this Act.
A secure care order means a care order requiring the local authority into whose care a person is committed by a secure care order to accommodate. the person in secure accommodation for a period specified by the court and not exceeding two years at the end of which period or of any lesser period as specified by the court the person shall continue in the care of the local authority subject to the provision of section 21 of this Act.".'—[Mr. Edward Gardner.]

Brought up, and read the First time.

Mr. Edward Gardner: I beg to move, That the clause be read a Second time.
The purpose of tills new clause is to give to the juvenile courts the powers that they do not have at present and that they need desperately to deal effectively with persistent offenders under 17. The new clause empowers the courts to order these offenders to live in community homes and, where necessary, in secure conditions in these homes for specified periods not exceeding two years.
The need for this clause lies in the failure of the present law to contain the alarming rise of what is seen by many as the scandal of uncontrolled juvenile crime. I remind the House that most burglaries and violent crimes, including crimes of what is known as mugging, are now being committed by schoolchildren between the ages of 10 and 16.
The law on this group is contained in the Children and Young Persons Act 1969. The Act replaces punishment by treatment and, through what are known as care orders, transfers responsibility for treatment from the juvenile courts to the social workers employed by the local authority.
Social workers by choice, and perhaps more frequently because of the absence of other accommodation, all too often

send or have to send the offenders back to the bad homes and bad parents under the influence of which the offender may have committed the original offence and from which base he may well be expected to commit further offences. Magistrates who are helpless, police who feel frustrated, and many social workers who are both, fear that the problem is getting completely out of control—if that situation has not already happened.
The main anxiety is the growth of a hard core of persistent offenders for whom the courts and the law have no meaning and for whom the courts have no effective power. I want to make clear so that there is no misunderstanding that this clause is aimed at dealing with this hard core of persistent offenders.
I should like to give the proportion of offenders in the age groups covered by the 1969 Act relating to persistent young offenders, but I have no such statistics. Last week I tabled the following parliamentary Question to the Home Department for Written Answer:
how many children and young persons, during the most recent period of 12 months for which figures are available, have been dealt with for a third or subsequent offence (a) involving violence or (b) of burglary.
The Minister's answer was
I regret that this information could be obtained only at disproportionate cost"— [Official Report, 12th July, 1977; Vol. 935, c.67.]
I make no complaint about the answer, but I wish to underline that the magistrates and police are under the firm, and I believe accurate, impression that this group of persistent offenders is growing rather than diminishing and that the public at large are agitated by fear that the problem is now out of control.
There are three principal reasons for the present state of affairs. One reason undoubtedly is that sufficient facilities under the 1969 Act have not been given to those who have to deal with this problem so as to make the legislation work properly. But it is essential to bear in mind that, even if these facilities were available now, they would not help with the problem of the persistent offender.
.The second reason is the lack of cooperation between the social and the educational services. The Government should deal with that matter urgently.
9.15 p.m.
The third reason is covered by this clause and relates to the absence of any provision in the 1969 Act to allow courts to control persistent offenders. This can be remedied tonight by an amendment to the 1969 Act, because that would be the effect of accepting the new clause. The new clause would give the juvenile courts the power to make a residential care order or, if necessary, a secure care order of the kind that has been recommended by three committees over the years. One of them was an all-party committee.
The first was a committee of the Society of Conservative Lawyers. The second recommendation was in the eleventh report of the Expenditure Committee on the workings of the 1969 Act, and the third was a Conservative study group on juvenile crime set up by my right hon. Friend the Member for Penrith and The Border (Mr. Whitelaw). I urge the House to accept that no Government who deserve the name can afford to ignore the unanimous recommendation of three committees made up—as I hope is accepted—of responsible people with a deep interest in a particular problem. Neither could any Government afford to turn their back on the fears of the public and the mounting concern of magistrates, police and all others who have close and long experience of the problem.
For that reason I ask the Government to look at the clause, to accept it and to make it a necessary part of the law in fighting this aspect of crime.

Mr. A. J. Beith: When the hon. and learned Member for South Fylde (Mr. Gardner) listed the number of Conservative bodies in favour of the principles enshrined in the new clause I began to be worried about whether I should rise to support it. However, there are other bodies not so closely associated with the Conservative Party and a wide range of public and informed opinion that is concerned about the problem of ensuring that secure accommodation is provided and can be ensured by the courts for certain types of young offenders.
The most dangerous part of the situation, as the hon. and learned Gentleman hinted, is that those most responsible

for dealing with the category of person we are discussing feel powerless to deal with the situation. The public know that because they freely admit it. I refer to the courts and the police. Both are charged with dealing with the problem. They are in the forefront and have had to admit time and again that there is nothing that they can do. They hold up their hands in despair.
The public reaction to that is understandably severe because it brings the effectiveness of our whole legal and penal system into disrepute. This is not intended to seek to undermine the remedial work in which the social service departments are rightly engaged and the work that is done with a large number of young offenders who do not need to be placed in secure accommodation and in whose cases wide discretion can be left in the hands of the local authorities and social workers.
However, it has long been apparent to all concerned that in certain cases the courts must be able to indicate to all concerned—to the public, to the offender, and to those responsible for dealing with him—that the crime is of such gravity and that the case follows such a pattern that security must be guaranteed. We cannot afford to allow a situation to continue in which the courts do not have that power, or in which policemen leave a courtroom convinced that their work has been wasted and that they will soon have the same offender in their hands again because he will have absconded from unsatisfactory accommodation, or even from home, in the absence of appropriate provision.,
We all know the financial limitations that have restricted attempts to implement the Children and Young Persons Act and it will be a long time before we solve the problem. However, if the courts do not have the power to take clear action that can be clearly seen in certain cases, I do not know how public confidence in the whole system of dealing with juvenile crime can be maintained for any length of time.

Mr. Grieve: I support the new clause. This Act has been a disastrous failure in protecting society and deterring juvenile offenders. This is not due to any lack of good will or hard work by those in local authorities and juvenile


courts who have done their best to implement the Act, but is because by this legislation society deprived itself of necessary safeguards at a time when juvenile deliquency was vastly on the increase.
I should like to support my hon. and learned Friend the Member for South Fylde (Mr. Gardner) with a few figures culled from the criminal statistics for England and Wales in 1975. They show the extent and danger of juvenile delinquency in our society and illustrate the need for society to protect itself and to protect these young people against themselves. I shall give the figures for men only because I want to be brief, but I can tell the House that the figures for female crime are shocking.
In 1975 there were 30,860 cases of "other woundings", which eliminates infanticide, and manslaughter but covers the vast spectrum of wounding. Of these cases 926,071 were dealt with at magistrates' courts. Of these, 528 were committed by children under 14, a total of 3,609 by boys under 17 and 6,982 by young men under 21. At the Crown court there were two cases committed by under-14s, a total of 62 committed by under-17s and 1,500 cases committed by under-21s.
The most serious offence that can be committed against die property of the subject is burglary in a dwelling house and if the law ought to do one thing it should be to try to protect citizens in their homes. A total of 13,456 of the 21,464 cases of such burglary contained in the statistics were dealt with at magistrates' courts and 2,768 of the offences were committed by children under 14. Those under 17 committed 6,783 cases and 1,868 were committed by young men between the ages of 17 and 21. In the Crown court there were four cases committed by under 14s, a total of 442 by under-17s and 3,388 by young men aged between 17 and 21.
There were a total of 42,993 other burglaries and 37,037 were dealt with by magistrates. Of these, 5,854 were committed by childen under 14, a total of 12,387 by those aged between 14 and 17 and another 9,116 by those aged between 17 and 21. The Crown courts dealt with one case committed by a boy under 14. Those aged between 14 and 17 were

responsible for 229 cases and a total of 2,209 offences handled by Crown courts were committed by young men aged between 17 and 21.

Mr. Edward Lyons rose—

Mr. Grieve: I shall finish these figures before giving way to the hon. and learned Gentleman.
This is not a laughing matter. Labour Members may laugh themselves silly but it is a serious matter for these young people. It is a serious matter for society.
Robbery is one of the most serious offences known to the law. Of a total of 3,254 cases throughout the country 913—it is a justiciable by the magistrates —were dealt with in the lower courts. There were 275 cases of robbery committed by males under the age of 14 years, 606 by males between 14 and 17 years and 32 by males between 17 and 21 years. There was one case of robbery committed by a person under 14 years dealt with by the Crown courts, 127 committed by boys between 14 and 17 years and 1,016 by young men between 17 and 21 years.
I conclude with the statistics for theft from the person of another. Of a total of 1,831 males convicted, 1,632 were dealt with before the magistrates. There were 102 cases committed by children under 14 years, 292 between 14 and 17 years and 552 by those between 17 and 21 years. In the Crown courts there were two cases committed by those under 14 years, seven under the age of 17 years and 83 between the ages of 17 and 21.
The figures speak for themselves. They show that an appalling proportion of crime, which is ever on the increase, is being committed by juveniles. It is a proportion that should shake and shame society. In large measure it is being committed by juveniles under 14 years and by those between 14 and 17 years. One cannot escape the conclusion that in large measure this is due to the failure of the Children and Young Persons Act. It has completely failed to provide a proper form of custodial treatment for those who require it.
For the reasons that I have advanced I warmly support and applaud my hon. and learned Friend the Member for South


Fylde in moving the new clause. I congratulate him on the time and energy that he has expended upon this vital topic.
I promised to give way to the hon. and learned Member for Bradford, West (Mr. Lyons) and I do so now.

Mr. Edward Lyons: The figures that the hon. and learned Gentleman read out are appalling, but surely the new clause relates to children in respect of whom the magistrates have no powers to incarcerate. All the figures related to children between the ages of 14 and 17. I believe that at present the magistrates' courts can send them to detention centres. The hon. and learned Gentleman seems to be suggesting that the magistrates, who are entitled to send adults to a maximum of six months' imprisonment and juveniles to a maximum of six months in a detention centre, should have the power to send children under 14 years to up to two years' custody in secure accommodation. Does he really want that?

Mr. Grieve: The significance of the figures is the amount of crime committed by those under 21 years. I agree that we are concerned with the youngest in the age group but we cannot regard the figures relating to them in a vacuum. We must look at the figures for crime committed by all young people. That includes age groups beyond those directly under consideration tonight. That is why I thought it right to quote the figures in the various brackets for those under 14 and up to 21.

9.30 p.m.

Mr. Kilroy-Silk: The hon. and learned Member for Solihull (Mr. Grieve) has been slightly misleading in quoting figures for offences committed by young people who are not covered by the new clause. The hon. and learned Gentleman has given a colourful and clearly accurate picture. However, if one were not careful, one would think that those figures applied to the age groups specifically included in the clause.
I accept that there is a problem with juvenile crime. No one can attempt to discount or in any way evade the issue. However, it is exaggerated from time to time. If we examine the statistics closely, as did the hon. and learned Member for

Solihull, we find that the largest number of offences tend to be committed by the same young offenders again and again. That presumably is the point of the expression used by the hon. and learned Member for South Fylde (Mr. Gardner)—"the hard core". Many offences are committed by many young offenders, but the majority of those offences are committed by a very small minority of young offenders.
The new clause, which is only slightly different from that tabled and debated in Committee, is designed to deal with the minority or hard core. The whole purpose of the exercise is slightly distasteful. I respect the hon. and learned Gentleman's motives in wanting to deal with juvenile crime and delinquency. I respect his sincerity and his expression of concern about the problem. Therefore, it is legitimate to attempt to deal with it in a Bill of this kind. But the hon. and learned Gentleman goes further than that, and that is what I find distasteful.
The hon. and learned Gentleman, together with many other Opposition Members, is using this clause as an opportunity to snipe at the provisions of the Children and Young Persons Act 1969 and the whole philosophy that lay behind it. I was surprised, if not perturbed, to hear the hon. Member for Berwick-upon-Tweed (Mr. Beith), on behalf of the Liberal Party, join that cause tonight. I should have thought that the philosophy behind the 1969 Act, however imperfectly it has been implemented in practice, was such that the hon. Gentleman would have supported it.
Although the 1969 Act has not been successful—we all accept that—its lack of success is due to the inability of successive Governments to provide the necessary resources. If it is ever to be successful, resources must be made available to local authorities, particularly for the provision of community homes with secure units. That is one aspect that is covered by the new clause. Many of the provisions of the 1969 Act have not been implemented. We are still waiting to see whether the Act can be successful when fully implemented.
The Opposition have taken the opportunity in this new clause to go to the core of the 1969 Act before it has been given a fair trial by any Government. It has


not had sufficient resources, motivation or push devoted to it by the Government, local authorities or magistrates. Indeed, it has not had many of its provisions properly implemented.

Mr. Edward Gardner: I am not seeking to come into conflict with the hon. Gentleman's views on the 1969 Act and the fact that it has not been given a fair chance. But can he point to any provision in the Act that could with any chance of success have applied to what I have described as the hard core of persistent offenders?

Mr. Kilroy-Silk: I was about to come to that point. The hard core—the minority of persistent offenders—are already dealt with in provisions that enable the Crown court to send those who are guilty of criminal offences to borstal training or to detention centres. The individuals referred to by the hon. and 'earned Member for Solihull are coverd already. The courts—not the magistrates' courts—have the power to order borstal training. They have power to send people of 15 years and upwards to detention centres. Perhaps the hon. Gentleman is suggesting that children of 12, 13 and 10 years should also now, under his new clause, be subjected to what he calls a secure care order but what is in effect a term of imprisonment. though it be in a community home or residential establishment, for a period of up to two years. We should be giving that power to juvenile courts or magistrates—a power that neither the hon. and learned Gentleman nor I was prepared in Committee to give to the magistrates.

Mr. Edward Gardner: The hon. Member is distorting the argument by talking about prison. Community homes are not prison. They are places which can help children and, if they are properly used in the way that we suggest, to protect the public as well.

Mr. Kilroy-Silk: I hope that the hon. and learned Gentleman is not trying to misconstrue what I said. I did not say that community homes were prison. I said that in effect trey would amount to imprisonment in a residential establishment, in a community home, if the clause that he is proposing tonight were enacted.
The philosophy of the 1969 Act was based upon notions of care and treatment. I know that these are soft words, words that we are not supposed to use in today's hard, modern world. They are, nevertheless, important. It is important that we consider children in trouble and that we should be attempting to care for and treat them. If the new clause is accepted, the degree of flexibility that the 1969 Act allows to local authorities and social service departments, will go out of the window.
The whole point of the 1969 Act is that the needs of children shall be assessed, that they shall be in the appropriate residential establishments—perhaps they should be the secure unit of a community home—that they shall have schemes and methods devised for them which it is hoped will lead to their reform and rehabilitation. As they progress—we hope that they will progress through that system—alternative measures will also be devised and implemented.
There may be occasions when one allows the child into the community, hack to its parental home, to see whether the process of reform and rehabilitation has so far been successful. We need a degree of flexibility and a range of alternatives so that a variety of schemes can be employed appropriate to the individual, appropriate to his age and appropriate to whatever development he happens to be making when he is under the control of the local authority.
If we accept this new clause we shall lose for ever that degree of what I hope is imaginative flexibility. This will be to the detriment of the children concerned.

Mrs. Kellett-Bowman: Is the hon. Gentleman aware that so many of these community homes decline to accept children whom they regard as the slightest bit awkward? They take the better grades of person from the court and they do not take those who most need their care. Those children are returned to their parental homes from whence they originated to commit the crimes, and social workers are powerless to do anything about it.

Mr. Kilroy-Silk: My hon. Friends say that that is not true. However, I have a great deal of sympathy for what the hon. Lady said. I feel that in some cases the


more difficult and more obstreperous child is refused entry into the community home, because the better child can be accommodated, for the good management of the home. So we are led to the paradoxical situation in which the more manageable children are in residential establishments and the more difficult children end up, as it happens, in prisons and remand centres. The local authorities will not accept them because too much power and discretion is given to the heads of the community homes. This is a major criticism of the operation of the Act, and it is why last year we had 5,000 14-to-16 year olds in remand centres and prison establishments.
With all the concern and sincerity of the hon. and learned Member for South Fylde, I feel that his new clause is ill-conceived and that it will lead to mischievous consequences.
There are occasions when difficult children do not find places in community homes. They go into the care of local authorities which means, in effect, that they returned to their parental homes immediately. That should not happen unless it is done under proper supervision and unless it has been determined by those best able to judge and who should know—the social workers concerned—that perhaps the child is better in his parental home and can be supervised there. I accept that in far too many cases juveniles who are difficult are taken into the care of the local authority and are immediately allowed to roam the streets again. That ought not to happen.
But I do not wish to go to the lengths suggested in this clause where we are giving magistrates powers in relation to juveniles that we do not give them in relation to adults and telling them that they must be doctrinaire and rigid and must impose what amounts to a sentence of imprisonment on a young child, albeit not in prison, and that there will not be the kind of proper fitting in of therapeutic, rehabilitative and reformative measures devised on a flexible basis to the benefit of that child and, it is to be hoped, through him to the benefit of the community.
I hope, therefore, that the Minister and my hon. Friends will resist the clause as strongly and with as much vigour as we did in Committee.

Mr. Sims: The amendment stems from a variety of respectable sources which were listed by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) not least of which is the eleventh report of the Expenditure Committee of this House, which the hon. Member for Berwick-upon-Tweed (Mr. Beith) will agree could hardly be described as essentially a Conservative body, especially since its chairman was the hon. Member for Wolverhampton, North-East (Mrs. Short), who could hardly be described as a Right-wing reactionary. Furthermore, its report was a unanimous one.
The Select Committee examined carefully the whole of the working of the Children and Young Persons Act. It considered the philosophy to which the hon. Member for Ormskirk (Mr. Kilroy-Silk) referred, it found various faults in the way that the Act was working, and it made a variety of recommendations.
Two of these recommendations were to the effect that
when a care order is made agreement should be reached in court between the magistrates and social workers concerned on what should be done with the child. If the agreed course should prove impossible or undesirable the social worker should notify the court
and that
when a juvenile already the subject of a care order appears before a court charged with an offence the court shall have the power to make, if it thinks fit, a 'secure care order' requiring the local authority to place the juvenile in secure accommodation for a period".
In other words, the recommendation accepted the point which my hon. and learned Friend the Member for South Fylde and I sought to make when this matter was discussed in Committee, namely, that the court in circumstances such as these should have some say in the way in which the case was finally disposed of and the child dealt with.
Interestingly enough, in giving its observations on the eleventh report of the Select Committee the Home Office appeared to accept the general thesis behind this. In paragraph 26 of its observations the Home Office said:
the Government recognised that many juvenile court magistrates have much experience of the problems and needs of juvenile offenders, and also that in the process of the court hearing, which includes the consideration of detailed reports about the offender, the court can form its own considered view in the light of all the


circumstances of the offence and the offender about a suitable disposal.
It goes on to suggest that, when a care order has been made, the magistrates should be able to make a recommendation that the child should be placed in secure accommodation. Unfortunately that proposal was spoiled by the suggestion that the magistrates should not say anything in court but that little notes should be passed and whispered conferences should take place behind closed doors.
9.45 p.m.
When we discussed this in Committee the Minister of State said that relatively few cases occurred where this was a real problem. However, he admitted that he did not know the number of cases where the court would have made a secure order if it was able to do so.
Those who know about these matters are those who work i n the juvenile courts. I have letters from chairmen of three juvenile courts who can speak with authority. They deal with such cases week after week and day after day. The chairman of a juvenile court in Yorkshire says:
children who have been made the subject of Care Orders and appear to be in urgent need of training and discipline are being returned home to their parents, and also may well appear before the court for a farther offence.
The chairman of a juvenile court in Lancashire tells of having before him nine juveniles who had committed 12 offences between them and were asking for 140 other offences to be taken into consideration. Practically all the offences involved burglary or theft. Of the nine offenders five were already in the care of the local authority and residing in local authority homes.
One boy, aged 14, who had committed five offences and asked for 46 others to be taken into consideration had not attended school for even a day. A report on that boy said that he had absconded from the local authority home at every opportunity and that when returned to the home he had immediately absconded again. The boy had committed further offences on each of the occasions that he went missing.
The chairman said that it was only with the utmost effort and assistance of the hospital wings of detention centres that he was able to ensure that the boy was put in suitable accommodation. The chairman states:

These cases are typical of the cases with which we are dealing week after week. In their own interests many of these children need secure homes from which there is no escape.

Mr. Kilroy-Silk: The hon. Member said that he would quote from people who should know. Those who know are those who have to deal with children, such as members of the British Association of Social Workers. They are opposed to the new clause. The Association of Metropolitan Authorities, representing authorities that would have to administer and find resources for this provision, is also opposed to it.

Mr. Sims: The British Association of Social Workers has indicated that it does not support the new clause because the effect of the Children and Young Persons Act was to transfer authority from the courts to the social services. We are suggesting that some of that authority should be transferred back to the courts.
Although the British Association of Social Workers has expressed opposition, some individual members support what we are trying to do. There are arguments on both sides. Social workers are not united against the new clause. Many support us.
I detain the House only to quote one more case which is particularly apposite. It concerns a boy of 11 years of age. We are not talking about a young thug of 16 or 17 years of age. The boy was charged with assaulting a woman with attempting to rob her, robbing and indecently assaulting another woman and with three offences of burglary. He admitted these offences and asked for 10 others to be taken into consideration. This lad broke into a dwelling, robbed a woman at knife point, then went into another house and threatened another woman with a blood-stained knife, robbed her and indecently assaulted her. A psychiatric report on the boy said that he was "dangerous".
The chairman of the juvenile court concerned, in outer London, said of the boy:
At the time of the offences he was in the care of the local authority. In view of the court's severely limited powers, the only decision open to us was to make a fresh care order and send the boy back from whence he came, and you can imagine our consternation when informed by social services, 'that there was no secure place for the boy'".

Mr. Charles Irving: Will my hon. Friend explain what he means by "secure accommodation"? Is he suggesting that there should be completely separate children's prisons as units that are separate from the community schools, or is he suggesting that there should be an extension of secure accommodation attached to the community schools?
Those who are involved in social services are just as much aware as magistrates—and probably more so—that there is a serious problem with young people. I speak as the chairman of a social services committee. There is nothing wrong with the 1969 Act. The only thing wrong with that Act is that no one has ever allocated sufficient resources to provide the facilities that are required. I cannot see that the proposal of my hon. Friend will be of any great assistance in providing more facilitises unless resources are provided to go with it.

Mr. Sims: I think that my hon. Friend is absolutely right. More resources must be devoted to providing secure accommodation for the court to use. This should not be difficult. There are plenty of community homes where there is residential accommodation, and some of them have vacant places. Implementing the idea of a residential order is perfectly practicable.
On the question of secure accommodation, I should favour having relatively secure wings in existing community homes. This is practicable. The problem is that at present courts have no power to use community homes in appropriate cases.
I return to the letter to which I was referring before my hon. Friend intervened. The chairman of the juvenile court went on to say:
It is true that each of these ladies has suffered a terrible experience, but surely the chief matter for concern is that such a situation can exist under the present law whereby nothing can be done to contain a boy within a secure environment so as to prevent a repetition of such occurrences.
That is a view that we should all share.
I urge the Home Secretary, even at this stage, to face reality, to recognise the problem here and to act on it by accepting this new clause.

Mr. Edward Lyons: I understand the anxieties that have been expressed, particularly by the hon. and learned Mem-

ber for South Fylde (Mr. Gardner). We are witnessing a very serious juvenile problem. It is also true that magistrates and police alike feel a sense of frustration. None the less, we have to look at this very carefully and decide what is the best way of dealing with this difficult situation. We have only 200 secure places in the country. Many areas have no secure accommodation.
The hon. Member for Chislehurst (Mr. Sims) revealed the truth of the matter in one of his examples when he told us that the social workers, who have the power to recommend secure accommodation, had to say that they wanted to send a boy to secure accommodation but that it did not exist. If we pass the new clause, the same situation will obtain. If a magistrate says "To secure accommodation with you", and there is none, how has the new clause changed anything?
We must decide whether we wish the decision about secure accommodation to be taken by magistrates or the social workers, who are in day-to-day contact with the juvenile. We are talking about children under 15. All the comparative figures that we have been given for those over 15 are irrelevant to the clause, because the courts have power to send people aged 15 upwards to detention centres.
The proposal in the new clause, dealing with children under 15, is simple—that magistrates should have the right to send them away for up to two years. Admittedly, some of them are very naughty and do terrible things. Some have the makings of recidivists already. It is being said that it should be left not to the social workers working with the children to make that decision but to the magistrates before whom they appear.
When we tell the magistrates "You can send people aged over 15 away for only up to six months, but you can send children away for up to two years", that is putting things in reverse order. Adults are better able than children to stand up to the wrong decision. In the days of the approved schools 80 per cent. of the children who went to them committed further offences when they came out. The idea that one can send a child to a secure place and—hey presto!—he is cured is not borne out by history.
The community homes used to be approved schools which were not secure. In the 1960s there was an absconsion rate of over 60 per cent. for boys and over 40 per cent. for girls. It was a commonplace at the Bar in the 1950s to appear for children who had committed a whole string of offences in the attempt to return to their homes having absconded from approved schools. They had no money and used to break into houses to obtain the wherewithal to return home.
There is a total absence of resources. To give the magistrates power to send children to secure accommodation that largely does not exist is fatal. Like judges, they have no obligation to consider whether there is a place at which the sentence that they order can be implemented. As a recorder, I have the duty of sending people to prison for the appropriate time. It is not for me in that judicial function to consider whether there is a prison waiting or whether the convicted person will be one of three in a cell, two in a cell, or whatever. The magistrates will simply say "A secure place is needed", but there is no secure place in most areas. It is better that the social workers should consider what can be done. If they think that a secure place is right, they should seek to find one.
If there is no secure place, what are the social workers to do? It is no use the magistrates making orders that cannot be implemented to fill 200 places. We are being asked to decide that instead of social workers making the decision, on the basis of day-to-day consideration, it should be given to a juvenile court bench, whose members are often unqualified, although they do very good work. That is the pin on which we are balancing.
I do not believe that magistrates, who, we say, must not be given the power to imprison anyone aged over 15 for more than six months, should have the power to sentence children to up to two years. Even when a magistrate wants to send a person aged 17 to borstal, that young person has to go to the Crown court, because it is not accepted that magistrates have the judgment or ability to impose such a sentence.
The case comes up to people such as myself, and we have to make the decision whether to commit to borstal. That is the position. But, apparently, magistrates

can be given the power to send small children away for two years. I suggest that before we do so the arguments have to be very powerful. They do not seem to me to be powerful enough tonight, albeit that I appreciate that there is a very serious problem in relation to these small children. How do we deal with that?

It being Ten o'clock, the debate stood adjourned.

Ordered,

That the Criminal Law Bill [Lords] may be proceeded with at this day's sitting, though opposed, until any hour.—[Mr. Tinn.]

Question again proposed, That the clause be read a Second time.

Mr. Speaker: Had the hon. and learned Member for Bradford, West (Mr. Lyons) completed his speech?

Mr. Edward Lyons: I have finished, Mr. Speaker.

Mr. Robert Boscawen: Recognising that this has been a lawyers' fiesta this evening, I hesitate to intrude on it, but, having been married to someone who for 17 years has sat as an Inner London juvenile magistrate, I am not totally uninformed of the problem from that point of view. Week after week I have listened to reports of what is said by the magistrates who are dealing with these problems in the courts, and I am well acquainted with the growing feeling of complete inadequacy in relation to the problem of the small minority of severe and persistent hard-core young offenders. I think that this problem has been recognised in all parts of the House in the debate. Unfortunately, up to the present we have not found an adequate way of dealing with these hard-core young offenders.
I agree that the problem of countering the rising level of crime, and the appalling figures for crime among young people, goes far wider than just making some improvement in the manner in which we deal with the offenders. But the Government are doing very little to deal with the problem at the present time.
It is true that the resources are very limited, and that this has been the main cause of the failure of the Children and Young Persons Act 1969. I understand that the magistrates are certainly not


unaware of all the shortcomings of the previous system of approved schools, with the high rate of absconding from them. Nevertheless, because of the lack of facilities today for dealing with the serious and persistent young offender—not just of 14 and under but from 15 to 17 as well—the care order too often means nothing more than the local authority having to return the offender to his home. Too often, offenders abscond from the community home to which they have been sent.
Something must be done urgently about this problem. It not only harms these often maladjusted and sick-minded offenders if they do not receive the treatment they should have been given. It also undermines the whole confidence of the public generally in the working of the Children and Young Persons Act 1969. If the young offenders are sent home because there are no proper facilities for dealing with them, the fact that they appear to have got away completely with their crimes is a direct encouragement to their younger brothers and sisters or friends.
The havoc which can be created by these young people, and the sometimes serious injuries which can result from their activities, creates a severe lack of confidence by the public generally in the working of the Act and in the methods of dealing with young persons in trouble.
The White Paper, Cmnd. 6494, appears to many people, including the magistrates who have to deal with the Act, to be extraordinarily wishy-washy and to be side-stepping the main problem of the hard-core young offenders. In the guise of not wanting to
blur the lines of responsibility between the court and the local authority"—
in the words of the White Paper—the Government refuse to accept that magistrates should be given authority to ensure that local authorities keep these persistent offenders in secure accommodation while they are undergoing the treatment they need and without which they are likely to become hardened thugs who may be criminals for the rest of their lives.
Because of the lack of facilities, the 1969 Act cannot work as it was designed to do. Something must be done to prevent even further erosion of confidence.

Although it is not perfect and will not produce any new accommodation, the clause will make people realise that secure accommodation is needed in the existing homes. Even if they do not accept it, I hope that the Government will bring forward something similar to give confidence to those who have to work the legislation that they mean to overcome this growing and worrying problem.

Mr. John: This debate leads out of the full debate that we had in Committee on the new clause which was defective because it applied only to care orders and not to criminal orders. This new clause has been drafted to provide for two new orders under Section 7 of the 1969 Act, but it is still defective, and even were we not at variance with its basic philosophy, we should find it completely unacceptable.
The two new orders provided for are not restricted to children and young persons who are already subject to a court order and who appear before a court. Nor is the power proposed linked to offences which would be punishable by imprisonment if committed by an adult. This creates the anomaly that the ordinary care order under Section 7(7) of the 1969 Act would be available only in respect of juveniles found guilty of an offence which would attract imprisonment if they were adults. Therefore, a secure care order could be made on less stringent criteria than an ordinary care order, which is totally anomalous.
As the hon. Member for Cheltenham (Mr. Irving) suggested, secure accommodation is nowhere defined either in the 1969 Act or in the new clause, so we should be legislating for something which was not precise. Therefore, on technical grounds I could not advise the House to accept the new clause.
The hon. and learned Member for Solihull (Mr. Grieve), who accused people of laughing during his speech, cannot mean—

Mr. Grieve rose—

Mr. John: I am developing an argument and I should be grateful if the hon. and learned Gentleman would allow me to complete it. I listened to his speech in silence—and without laughing. He cannot argue from that premise that we do not express concern for young people.


We all share the concern about hard-core recidivist juveniles. There is a small minority, but there is not the sort of burgeoning group that we have heard described in some speeches tonight. The answer does not lie in giving magistrates' courts powers far beyond those that they have had in the past. The answer lies in the provision of secure care.
A total of£3½ million over a two-year period has been provided for local authorities and powers were taken in the Children's Act 1975 for dealing with such secure care. We have come up against the basic difference in philosophy, arising out of the 1969 Act. If we gave magistrates the power to make a secure care order it would pre-empt from local authorities those places that they could use to better advantage for other children. We should be filling up the residential accommodation with people committed from the court while young people who are dealt with by local authority social workers were being shut out.
The proposals before the House tonight would not only give the courts power to give what is virtually a custodial sentence of up to two years compared with a limitation of six months for adults, but would give that power in relation to people appearing before the court for the first time. That is the basic and fundamental flaw in the clause.
I do not minimise the difficulties caused by juvenile crime and I do not minimise

Division No. 193]
AYES
[10.13 p.m.


Adley, Robert
Gow, lan (Eastbourne)
Monro, Hector


Arnold, Tom
Gower, Sir Raymond (Barry)
Morris, Michael (Northampton S)


Atkins, Rt Hon H. (Spelthorne)
Grylls, Michael
Neubert, Michael


Bennett, Dr Reginald (Farehain)
Hall-Davis, A. G. F.
Osborn, John


Biffen, John
Hamilton, Michael (Salisbury)
Page, Rt Hon R. Graham (Crosby)


Boscawen, Hon Robert
Harvie Anderson, Rt Hon Miss
Page, Richard (Workington)


Brooke. Peter
Haselhurst, Alan
Pym, Rt Hon Francis


Brotherton, Michael
Havers, Rt Hon Sir Michael
Ralson, Timothy


Buchanan-Smith, Alick
Hawkins, Paul
Rathbone, Tim


Budgen, Nick
Hayhoe, Barney
Renton, Rt Hon Sir D. (Hunts)


Chalker, Mrs Lynda
Holland, Philip
Renton, Tim (Mid-Sussex)


Clarke, Kenneth (Rushcllffe)
Howell, Ralph (North Norfolk)
Rhys Williams, Sir Brandon


Clegg, Walter
Hunt, David (Wirral)
Ridadale, Julian


Cooke, Robert (Bristol W)
Hurd, Douglas
Rifkind, Malcolm


Corrie, John
Jessel, Toby
Roberts, Michael (Cardiff NW)


Dean, Paul (N Somerset)
Jopling, Michael
Rossi, Hugh (Hornsey)


Dodsworth, Geoffrey
Kellett-Bowman, Mrs Elaine
Rost, Peter (SE Derbyshire)


Durant, Tony
Lawson, Nigel
Sainsbury, Tim


Elliott. Sir William
Luce, Richard
Scott, Nicholas


Eyre, Reginald
McCrindle, Robert
Shelton, William (Streatham)


Falrbairn, Nicholas
Macfarlane, Neil
Shepherd, Colin


Fairgrieve, Russell
MacKay, Andrew James
Silvester, Fred


Fookes, Miss Janet
Mawby, Ray
Sims, Roger


Fox, Marcus
Mayhew, Patrick
Sinclair, Sir George


Gardner, Edward (S Fylde)
Meyer, Sir Anthony
Skeet, T. H. H.


Gilmour, Sir John (East File)
Miller, Hal (Bromagrove)
Smith, Timothy John (Ashfietd)


Glyn, Dr Alan
Miscampbell, Norman
Speed, Keith


Goodharl, Philip
Moate, Roger
Spicer, Jim (W Dorset)

the figures. But the diagnosis that is being advanced is not matched by the remedy propounded, which would seriously impinge upon the Act and its success in dealing with juveniles in trouble if we were to blur the responsibility.

To care for children and look after their welfare is not a matter of sent timentality but an insurance policy for us all. The more successful we are in dealing with these problems, the less the likelihood of re-offence. That is why on grounds of both principle and practicality I urge the House to reject the new clause.

Mr. Edward Gardner: There is no lack of desire on this side of the House to look after and care for children wherever possible. But the technical imperfections which may well be present in this new clause are no reason for the Government's rejection of the principle behind it.
The new clause provides the Government with an opportunity—perhaps their last—to put right what has become a national scandal. This clause can give the only present and immediate hope for the protection of the public from persistent young offenders. I urge the House to support it.

Question put, That the clause be read a Second time:—

The House divided: Ayes 103, Noes 151.

Sproat, lain
Thomas, Rt Hon P. (Hendon S)
Whitelaw, Rt Hon William


Stanbrook, Ivor
van Slraubenzee, W. R.
Young, Sir G. (Ealing, Acton)


Steen, Anthony (Wavertree)
Viggers, Peter
Younger, Hon George


Stewart, Ian (Hitchin)
Wakeham, John



Stradling Thomas, J.
Welder, David (Clitheroe)
TELLERS FOR THE AYES:


Taylor, Teddy (Cathcart)
Waiters, Dennis
Mr. Carol Mather and


Tebbit, Norman
Warren, Kenneth
Lord James Douglas-Hamilton


Temple-Morris, Peter
Weatherill, Bernard





NOES


Abse, Leo
George, Bruce
Parry, Robert


Anderson, Donald
Golding, John
Pavltt, Laurie


Archer, Rt Hon Peter
Gould, Bryan
Penhaligon, David


Armstrong, Ernest
Gourley, Harry
Phipps, Dr Colin


Ashton, Joe
Grant, George (Morpeth)
Price, C. (Lewisham W)


Atkins, Ronald (Preston N)
Hardy, Peter
Radice, Giles


Atkinson, Norman
Harper, Joseph
Rees, Rt Hon Merlyn (Leeds S)


Bates, Alf
Harrison, Rt Hon Waiter
Richardson, Miss Jo


Beith, A. J.
Hooley, Frank
Robinson, Geoffrey


Bennett, Andrew (Stockpot N)
Hooson, Emlyn
Rodgers, George (Chorley)


Boardman, H.
Horam, John
Rodgers, Rt Hon William (Stockton)


Boothroyd, Miss Betty
Howell, Rt Hon Dents (B'ham, Sm H)
Rooker, J. W.


Brown, Hugh D. (Provan)
Hoyle, Doug (Nelson)
Rose, Paul B.


Brown, Ronald (Hackney S)
Hughes, Robert (Aberdeen N)
Ross, Stephen (Isle of Wight)


Buchanan, Richard
Hunter, Adam
Ross, Rt Hon W. (Kilmarnock)


Callaghan, Jim (Middleton &amp; P)
Irving, Rt Hon S. (Dartford)
Sedgemore, Brian


Carmichael, Nell
Jeger, Mrs Lena
Selby, Harry


Carter-Jones, Lewis
Jenkins, Hugh (Putney)
Silverman, Julius


Clemitson, Ivor
John, Brynmor
Skinner, Dennis


Cocks, Rt Hon Michael
Johnston, Russell (Inverness)
Small, William


Coleman, Donald
Jones, Barry (East Flint)
Smith, Cyril (Rochdale)


Concannon, J. D.
Jones, Dan (Burnley)
Smith, John (N Lanarkshire)


Cook, Robin F. (Edln C)
Kaufman, Gerald
Spriggs, Leslie


Corbett, Robin
Kerr, Russell
Stallard, A. W.


Cowans, Harry
Kilroy-Silk, Robert
Steddart, David


Cox, Thomas (Tooting)
Lomond, James
Stott, Roger


Cunningham, G. (Islington S)
Lee, John
Summerskill, Hon Dr Shirley


Dalyell, Tam
Lector, Miss Joan (Eton &amp; Slough)
Taylor, Mrs Ann (Bolton W)


Davidson, Arthur
Lewis, Ron (Carlisle)
Thomas, Ron (Bristol NW)


Davies, Bryan (Enfield N)
Lyon, Alexander (York)
Thorne, Stan (Preston South)


Davies, for (Gower)
Lyons, Edward (Bradford W)
Thorpe, Rt Hon Jeremy (N Devon)


Deakins, Eric
McCartney, Hugh
Tins, James


Dean, Joseph (Leeds West)
McDonald, Dr Oonagh
Wainwright, Edwin (Dearne V)


Dempsey, James
McElhono, Frank
Wainwright, Richard (Colne V)


Doig, Peter
MacFarquhar, Roderick
Walker, Terry (Kingswood)


Dormand, J. D.
McGuire, Michael (Ince)
Ward. Michael


Douglas-Mann, Bruce
Madden, Max
Watkinson, John


Duffy, A. E. P.
Mallalieu, J. P. W.
Wetibeloved, James


Dunn, James A.
Marks, Kenneth
White, Frank R. (Bury)


Dunnett, Jack
Marshall, Dr Edmund (Goole)
Whitehead, Phillip


Dunwoody, Mrs Gwyneth
Marshall, Jim (Leicester S)
Whitlock, William


Ellis, John (Brigg &amp; Scun)
Maynard, Miss Joan
Wigley, Dafydd


Ellis, Tom (Wrexham)
Mendelson, John
Williams, Sir Thomas (Warrington)


Evans, Gwynfor (Carmarthen)
Mikardo, Ian
Wilson, Alexander (Hamilton)


Evans. loan (Aberdare)
Milian, Rt Hon Bruce
Wilson, William (Coventry SE)


Evans, John (Newton)
Mitchell, Austin Vernon (Grimsby)
Wise, Mrs Audrey


Faulds, Andrew
Morris, Charles R. (Openshaw)



Flannery, Martin
Noble, Mike
TELLERS FOR THE NOES:


Fletcher, Ted (Darlington)
Oakes, Gordon
Mr. Ted Graham and


Ford, Ben
Ovenden, John
Mr. James Hamilton


Freeson, Reginald
Palmer, Arthur



Freud, Clement
Park, George



Question accordingly negatived.

New Clause 14

MISUSE OF DRUGS ACT 1971: ALTERA TION OF PENALTIES AND OTHER AMENDMENTS

'Schedule (Misuse of Drugs Act 1971: Alteration of penalties and other amendments) to this Act shall have effect for the purposes of altering the penalties available on conviction on indictment for the purposes of those offences triable either way listed in that Schedule and for the purposes of the other amendments therein listed '.—[Mr. Corbett.]

Brought up, and read the First time.

Mr. Corbett: I beg to move, That the clause be read a Second time.

Mr. Speaker: With this we may take Amendment No. 126—Misuse of Drugs Act 1971: Alteration of Penalties and Other Amendments.

Mr. Corbett: Nothing in the new clause or the amendment is concerned with the proposition that cannabis should be legalised. None of us supporting the new clause is proposing that cannabis should be bought and sold over shop counters in the same way as cigarettes, drink and tobacco, of which I am a regular user. I hope that it will be clearly understood by hon. Members taking part in the debate that we are not arguing that case.
The objectives of the new clause fall under three headings—first, to remove imprisonment as a penalty for the cultivation of cannabis; secondly, to abolish the offence of allowing premises to be used for the smoking of cannabis; and thirdly, to abolish the powers of the police to stop and search for drugs without formal arrest. I stress again that there is nothing in what is proposed that would legalise cannabis taking.
Since the passage of the Misuse of Drugs Act 1971 there has been a much-changed climate of medical, public and international opinion over cannabis, and it is right that the matter should be debated in this House.
Just as it is being argued that cannabis should more properly be treated in a class of its own under the 1971 Act—and I believe that it is wholly out of proportion to retain the penalty of imprison-

ment for possession—so we feel that imprisonment for the cultivation of cannabis is not appropriate. In Committee there was almost unanimity in the view that imprisonment was inappropriate for a conviction of possessing cannabis. The Minister said it as well as some of my hon. Friends and the right hon. and learned Member for Wimbledon (Sir M. Havers). Even the Chairman of the Advisory Council on the Misuse of Drugs was able to tell the Home Secretary in a letter on 17th June—I quote from page 499 of the report of the ninth sitting of 21st June—that certainly a majority of the Advisory Council takes the view at present that in principle imprisonment should no longer be available for the possession charge. I mention that by way of background because clearly that has a bearing on the home cultivation, if I may so describe it, of cannabis.
10.30 p.m.
In the light of that rare degree of unanimity and support from such a distinguished body as the Advisory Council, I am tempted to ask my right hon. and hon. Friends on the Government Front Bench why they did not seek to make these and other changes at that stage. Although the Minister said in Committee that these matters would be considered as a matter of urgency, and later referred to an urgent plan for action. I expect that we shall be told later that it would not he appropriate to deal with this matter in a piecemeal fashion.
It is important for the House to know that there is, as reflected in Committee, a significant and profound change of view about the use and possession of cannabis. It is worth noting that the number of people who are sentenced to periods of imprisonment on conviction on a first offence of possession of cannabis in any one year can be counted on the fingers of one hand.
We would ideally have liked, Mr. Speaker, for you to see fit to call another new clause, which would have enabled us to argue the case for the reclassification of cannabis under the Misuse of Drugs Act. As part of that argument we would have advocated the end of imprisonment as the appropriate sentence for conviction for possession.
I turn briefly to the suggestion that there should not be imprisonment for the


cultivation of cannabis. I like to think that I am as keen an amateur gardener as duties in this place permit me to be. However, I readily confess that cannabis is not among my crops. I am told that it is easy to detect its cultivation. There is not the slightest piece of evidence that in any back yard in any part of the country it has replaced lettuce, potatoes or cabbage as the standard back-garden crop.
The serious point I wish to make is that with the proposed removal of imprisonment as a penalty for possession, in logic it should also be removed for its cultivation. It is significant that a majority of the Advisory Council supports the view that imprisonment should no longer remain a suitable penalty for possession, and the logic of that should extend to cultivation, especially as there is not the slightest evidence to suggest that in secret farms scattered around in suitably-isolated locations there are vast crops of cannabis. There is no evidence to suggest that vast crops of cannabis are being cultivated with a view to people going into the illegal business of peddling and trafficking. I hope that my hon. Friend will pay particular attention to that argument when he replies.
There is also the argument that we should abolish the offence of allowing premises to be used for the smoking of cannabis. I admit that it is likely to be contentious. I believe that I am correct in saying that the smoking of cannabis is not technically an offence. That is covered by the charge of possession. A person does not have to be smoking it to be caught. Having it in his possession is enough for conviction under the Misuse of Drugs Act. That Act speaks of allowing premises to be used for the smoking of cannabis. In my view that places an unjust burden of criminal liability on a person to prevent the commission of an offence which is not strictly an offence—namely, the actual smoking. I am bound to add that I am informed that cannabis can be served in cakes if one does not smoke cigarettes.
Of course, there is the important qualification in this offence of knowingly—that is, knowingly permits. The offence is not committed if it is possession alone. I understand that under no other law is it a specific offence to know and not to

prevent another from committing a criminal act.
The last major point concerns stop and search. In any other context, I believe that this House would have none of this sweeping power given to the police. Indeed, I recall that when something similar was proposed under the Prevention of Terrorism (Temporary Provisions) Act 1976, after a debate in this House the Government were forced to concede and to give way.
I am surprised that the National Association of Freedom has not picked up this point, because literally thousands of young people each year are stopped—not arrested—by the police under this general power of stop and search. However, there has not been a croak out of the so-called National Association of Freedom. Perhaps when it has finished trying to stir up industrial havoc in part of this city, it may be willing to turn its attention to this matter because it amounts to a gross and continuing violation of civil liberties on our streets in an offensive way. It is particularly offensive because it is almost primarily aimed at young people—the very people whom we in this House and others elsewhere have a particular and special responsibility to try to encourage to have respect for our law and for those whom we appoint to try to ensure that it is kept and enforced.
I am sure that many hon. Members know constituents whose sons or daughters have been stopped at random by the police and searched under these wide powers. Indeed, it happened to the son of the widow of a former Member of this House because at that time he had shoulder-length hair and was walking through some unlit back streets of Hemel Hempstead—at a time of night when I am usually in bed—on his way home from a party. Because he was there and a panda car happened to be passing, the police thought it right to stop him and not to say "Who are you, where have you come from, where do you live?", but, using the powers under the Act and without any explanation, to insist on stopping and searching him.
The Act provides that the police can stop only those whom they reasonably suspect. All too often it seems that the only kind of suspicion that the police need to have is that a person's hair is


longer than theirs, that he is dressed in a peculiar way compared with them and that the hour may be late. There is no obligation under the legislation for the police to say what reasonable suspicion they have.
The Inspector of Constabulary's Report for 1975 states that 14,099 people were recorded by the police as having been stopped and searched under Section 23 of the Misuse of Drugs Act. That is the number of searches carried out under these powers recorded by the police. It is fair to assume that a lot more were carried out that were not recorded.
I underline the injunction that under the powers of that Act, stopping and searching only be carried out only if the police reasonably suspect someone of being in possession of drugs. It appears that the police do not always have good grounds for that suspicion. As the Inspector's report points out, 76 out of every 100 people stopped in that way were found not to have drugs on them. The detection rate has fallen from 33 in every 100 who were found to have drugs when stopped and searched in 1973 to 28 in every 100 in 1974 and to 24 in every 100 in 1975. That power does not seem to be doing the job for which it was intended, apart from its offence to civil liberties. The law does not relate to any specific drug. Therefore, the statistics do not record which drugs the police felt that they had reasonable grounds for suspecting were being carried.
This single power has proved to be one of the most damaging to the police—public relations, particularly to relations between the police and young people. At a time when we need renewed respect for the police, this power stands in the way of that objective.
The police need powers to hound the traffickers and those who have on them the hard lethal drugs which send too many youngsters to a painful and early grave. But the police have adequate powers in that direction under other statutes. They have general powers of arrest to deal with this situation, which means that they do not need to continue this random, hit-and-miss, stop-and-search procedure which is so totally offensive to young people. It is an abuse of civil liberties which cannot be justified

by the results and which cannot be tolerated in a country which holds dear its civil liberties.
One further point concerns the proposed definition of the term "controlled drug" to prevent prosecution for an unusable quantity of such a drug. Under the Misuse of Drugs Act a mere trace of cannabis is enough to warrant prosecution and conviction and, as things stand, imprisonment. We suggest that offences involving controlled drugs should be restricted to those cases where the quantity can actually be used as a drug. Convictions can and have been obtained on amounts not visible to the naked eye. There has been one case where a sentence of one year's imprisonment was handed out for the possession of 20 micro-grammes of cannabis—that is, 20 millionths of a gramme. In another case a six months' suspended sentence was given for the possession of 50 micro-grammes of cannabis.
This kind of charge and its resultant conviction, often leading to imprisonment, can only bring the law into disrepute among young people. The change we are proposing would deal with that by confining prosecutions to the area that matters, that is, where there is enough of the drug to be taken and used.
I urge the House to support the clause and the amendment.

Mr. John: My hon. Friend the Member for Hemel Hempstead (Mr. Corbett) has accurately expressed the intention of the clause and I do not intend to repeat what he has said. However, he was less than accurate—I am sure, unwittingly—in what he said about the proceedings in Committee.
Certainly at that stage there was a great deal of sympathy for the view that imprisonment in this area was inappropriate, and a majority of the Advisory Council on the Misuse of Drugs, set up by Parliament under the Misuse of Drugs Act took the same view.
However, the matter of urgency to which I referred then was not a programme of urgency for the Government. My hon. Friend the Member for Barking (Miss Richardson) was a member of the Committee and will readily assent to the fact that I gave no undertakings about being ready on Report with new matter.
I said that the body which we set up to advise us was, as a matter of urgency, initiating a comprehensive review of, among other things, the classification of drugs and penalties. I hope that my hon. Friend will feel that this is a useful way of proceeding. I hope, too, that the urgency which is expressed by the Chairman of the council in his letter to my right hon. Friend the Secretary of State will be given effect and that therefore a report from it will be before the House in the not-too-distant future. I shall see that it has a note of my hon. Friend's remarks, a promise I made in respect of the comments of my hon. Friend the Member for Barking.
The next point is to consider whether we act on this matter now. The Advisory Council said in paragraph 8 of its letter that it did not feel that the Bill was an appropriate vehicle for such action because to write provisions into this Bill does not give time for a reasoned approach to the matter. I believe that my hon. Friend and I share the view that on this matter proposals must be reasoned, well thought out and capable not only of defence but of being maintained.
10.45 p.m.
I hope on that issue that my hon. Friend will feel that, having introduced the matter, having underlined his concern and having put forward the various factors involved, he can now leave to the Advisory Council the task of getting on with this urgent review.
My hon. Friend argued that the stop and search power was a matter of controversy. Whenever it has been discussed, both here and elsewhere, the majority view has come down in favour of a continuation of the stop and search provisions. However, this is part of the pre-trial process for which the Royal Commission has been set up. I suggest that my hon. Friend and others who feel as he does should give the benefit of their experience and knowledge of individual examples to the Royal Commission so that it can consider, in the course of looking at the procedure process, whether this power is necessary and should be retained. I do not believe that it is wise to set up a Royal Commission to investigate certain matters, and then

pre-empt it on all of them. Therefore, I hope that here, too, my hon. Friend will not press the matter.
It is with no lack of sympathy that I ask my hon. Friend not to press his clause. It is merely because I think that, technically, these matters will be better dealt with by the bodies I have mentioned.

Dr. Colin Phipps: I hope that the Minister of State will not take it amiss if I say that waiting for the results of a Royal Commission does not help those people who are likely to be stopped and searched arbitrarily at any time or who may receive prison sentences during the next two, three or 10 years which such a Commission may take to report.
Cannabis is treated in this Bill, as it has been for many years, as if it were one of the hard durgs, and it is extremely offensive to people who are strong anti-smokers to find that cannabis, which as far as I know produces fewer ill effects than the smoking of tobacco, should be condemned to all sorts of criminal proceedings when the smoking of tobacco is still widely practised and allowed in our society.
It is fair to say, I think, that if Sir Walter Raleigh had brought back marijuana from the New World instead of tobacco, we should have in this country today the Imperial Marijuana Company and the British-American Marijuana Company. instead of the Imperial Tobacco Company and BATC—

Mr. Mikardo: And fewer cases of lung cancer.

Dr. Phipps: —and, as my hon. Friend rightly says, fewer cases of lung cancer.
We equate cannabis, as we have always done, with different kinds of substances from those with which we should equate it—tobacco. I do not smoke tobacco or cannabis, and I should be happy to see fewer people smoking tobacco, but I find it difficult to see why we as a House of Commons can permit the free smoking of tobacco, which apparently has well-established detrimental effects on the health of individuals and on the economy of the country, but not accept the smoking of what appears to be a totally harmless substance, namely, cannabis.

Mr. Hooson: On the other side of the coin, if tobacco had been introduced only recently and we knew of its deleterious effects, surely we would try to ban it.

Dr. Phipps: I suspect that what the hon. and learned Gentleman says is true—if we knew of its deleterious effects. But can anyone in this House tell me what the deleterious effects of smoking cannabis are? I understand that it does not cause cancer, that it does not appear to have addictive qualities and that it does not lead on to the much-proclaimed fact of going on to hard drugs.
I seems to me that the smoking of cannabis is much less offensive than the smoking of tobacco. Either we should be prepared to stop people smoking both, or we should be prepared to allow a certain degree of cannabis smoking. The amendment is not directed towards that. I should have liked to see accepted the new clause which puts cannabis and marijuana into a specific category. But that new clause was not selected.
We are discussing Schedule 126 and attempting to distinguish cannabis from the hard, lethal drugs and to put it in the same category as tobacco. Central to the schedule is the power to stop and search and to seize goods. It would be incredible for the police to have the power to stop someone walking down the street for smoking a cigarette, which is a dangerous thing to do. So long as one can walk down the street smoking a cigarette without being stopped and searched. I do not see why one should be stopped and searched on the suspicion of smoking marijuana. That is offensive and against the principles of civil liberty that we normally uphold in the House. It is totally opposed to what we should be doing.
I should like to see a full review not only of marijuana smoking but of tobacco smoking. If the debate does no more than persuade the Government to look at the smoking of marijuana and cannabis and the use of tobacco, it will have been worth while.

Mr. Corbett: In view of the statement by the Minister of State, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 16

NOTICE OF CHOICE OF COURT

'An accused charged with an offence triable either way shall be served with a notice in the prescribed form either when he is charged or when a summons is served upon him.

(2) The prescribed form of the notice under subsection (1) above shall be as set out in Schedule (Prescribed form of notice of choice of court) to this Act,'.—[Mr. Thorne.]

Brought up, and read the First tune.

Mr. Stan Thorne: I beg to move, 'I hat the clause be read a Second time.

Mr. Speaker: With this we may discuss Amendment No. 127, the new Schedule—Prescribed Form of Notice of Choice of Court.

Mr. Thorne: The new clause and the amendment will be easily understood by anyone who has been associated with the Bill since they stem from the James Report on The Distribution of Criminal Business between the Crown Court and magistrates' courts. Page 85 of the James Report deals with defendants' choice. The report states that the procedure is not understood by the defendant. It refers to the provision that
The court shall also explain to him that if he consents to be tried summarily and is convicted by the court he may be committed to the Crown Court under section twenty-nine of this Act if the court, on obtaining information of his character and antecedents, is of opinion that they are such that greater punishment should be inflicted than the court has power to inflict.
The report states that that is garbled and that the average defendant would have difficulty understanding his position and the choice open to him. Page 160, Appendix J, recommends the words that form part of Amendment No. 127. They show clearly what the defendant is faced with, his choice, in which court he may appear and various other aspects. I am not clear why the architects of the original Bill did not see fit to translate into it the recommendations of the James Report in this regard. Maybe in their later thinking, no doubt resulting from seeing the clause, they have decided to remedy that omission and to take on board new Clause 16 and the amendment.

Mr. John: I sympathise with what has just been said, but I feel that it is unnecessary for the Government to advise the House to accept the clause. I do not believe that it is necessary to embody it in the Bill because under the power to make rules of court under Section 15 of the Justices of the Peace Act and Section 122 of the Magistrates Courts Act 1952, all these matters can be specified by rules of court. I understand that the James Committee recommended in paragraphs 188 and 189 of its report that the comprehensive note should be given. I suggest that it should not be made a statutory requirement because once a form is made statuory it can be altered only by statute if it proves to be fraught with difficulties. Rules of court are much more easily changed if difficulties should arise.

Miss Jo Richardson: I can see the force of not having a provision that can be altered only by statute. But have any Government considered making this a rule of court? If so, why have they not done it?

Mr. John: I was coming on to say that in the light of what has been said I am prepared to initiate discussions about incorporating the provision in the rules of court, but I ask my hon. Friends not to make this matter rigid by enshrining it in a statute. I shall adhere to that undertaking.
My hon. Friend the Member for Preston, South (Mr. Thorne) went further and asked why the James Committee was not followed in this matter. The Justices' Clerks Society, amongst others, raised problems. That is why discusions as well as the less rigid formula are necessary. The Society doubted very much the advisability and value of this provision and took the view that a much better way of explanation was to have a duty solicitor or a solicitor available to the court. All this can be sorted out in the discussions that I undertake to initiate if the clause it not pressed.

Sir A. Meyer: I support the clause and the related schedule, if only because they will bring home to accused people the importance of the choice they will have to make. Many accused people, particularly those who are appearing in court for the first time, do not quite realise what is at stake. They probably imagine

that if they are accused of a relatively trivial offence, the informal, easy-going atmosphere of the magistrates' court will cause them less distress than the formal and awesome procedure in a Crown court, and so opt for the swift, rough justice of the magistrates' court, to get it over and done with. That could well turn out to be the most disastrous mistake of their lives.
It should be borne in mind that for many people who appear in court the real punishment is not the penalty imposed by the court but the verdict itself. Indeed, for many people a mere court appearance followed by an acquittal may completely blight their lives. Many people nowadays appear in court on certain charges, particularly shoplifting charges, where there is no shadow of criminal intent. The growth of self-service, in particular, has enormously increased the number of such cases. Sometimes it is absent-mindednes which has led them to take goods and leave the store without paying—

11.0 p.m.

Mr. Speaker: Order. I am afraid that the hon. Gentleman is straying to an amendment which was not called. This one is very narrow and I must ask him to keep to the question, which is outlined in very simple language.

Sir A. Meyer: I am grateful to you, Mr. Speaker. I shall come very closely to the point.
People find themselves, to their horror, having to face charges on trifling offences and tend to think that because magistrates cannot impose such severe penalties as can a Crown court, they stand a better chance of getting the case dismissed in the magistrates' court. That is a classic non sequitur. It may very well be that, precisely because the penalties which may be imposed are relatively trivial, the chances of the court finding the case proved are correspondingly increased.
The only figures I have been able to find are those relating to 1975, which show that 52 per cent. of cases of shoplifting dealt within magistrates' courts resulted in acquittal. That may seem a fairly normal percentage, but in view of the lightness of the penalties it—

Mr. Speaker: Order. I am sorry. I hate interrupting an hon. Member for a


second time, but this clause simply deals with the serving of notice and the prescribing of the form. He has made a gallant effort, but the hon. Member must not continue on that line.

Sir A. Meyer: I am just about to conclude, Mr. Speaker, on the very point you mention about the serving of notice. I must record a strong belief that anybody accused in such cases must be made fully aware of what is, at stake and of the differences of procedure between the magistrates' courts and the Crown courts. In cases such as those I have quoted it is all the more important that that should be brought to the attention of the accused. I have no hesitation in supporting the clause and amendment.

Mr. Robert Adley: I also support the new clause and amendment. I shall do my best not to cause you to rise, Mr. Speaker, but I think there is some reason to elaborate on the wording of the new clause relating to an offence triable either way. Many of us in the House are not lawyers and have to rely on experience of constituency cases. Particularly with shoplifting, there are people who find themselves on a charge for the first time and who have no experience of going before a court or finding themselves on a criminal charge and who have no knowledge, even, of having a choice of court. I understand that the new clause seeks not just to leave people in a never-never land of taking the law as it comes, but to give them some rights to know the choice before them. The hon. Member for Preston, South (Mr. Thorne), when he moved it, rightly referred to the James Committee.
It will be within your knowledge, Mr. Speaker, that when the Bill was originally drafted—and the Minister of State will confirm this—it included a clause which would have deprived people accused of shoplifting goods worth£20 or less of the right to go before a Crown court. That clause was removed from the Bill. As the hon. Member for Preston, South said, it was removed in another place, but it was that which gave rise to this new clause. We should spend a minute or two looking at this new crime of shoplifting.

Mr. Speaker: Order. That is where the hon. Member will follow his hon.

Friend the Member for Flint, West (Sir A. Meyer) down the path he should avoid. I am sorry to speak in theological terms, but I must ask him to do the same as I asked his hon. Friend to do.

Mr. Adley: I shall do my best, Mr. Speaker. The only other item in which I have taken an interest is rabies, and when one is concentrating on shoplifting and rabies one has to be fairly careful in what one says.
As to the choice of courts, a magistrates' court may well, as has been said, appear to be the quick and simple method by which to get a case heard and dealt with, but the available statistics indicate that in the crime of shoplifting—if I may mention that again, Mr. Speaker —those who elect to go before a Crown court have a better chance of being acquitted than have those who go before a magistrates' court. The reason is that the magistrates' court or the Crown court have to ascribe the motives to the person concerned. In the case of the particular crime that I have mentioned, a Crown court with a jury is far more likely to give a person a fair hearing and not to jump to hasty conclusions than is a magistrates' court. That is why I hope that the hon. Member for Preston, South will press his new clause as hard as he can. There is an important point at stake here.

Sir M. Havers: I had not intended to speak in the debate until my hon. Friend the Member for Christchurch and Lymington (Mr. Adley) used his last few sentences. I cannot sit here and allow to go unchallenged what he said about magistrates' courts. It simply is not true. Indeed, the figures indicate that accused persons have a greater chance of acquittal in the magistrates' court than in the Crown court.
Although the principle is sensible, there is another objection to the wording of the prescribed form of notice of choice of court in Amendment No. 127. I remember debating in this Chamber on two occasions the form of words of a referendum. There is plenty of expert evidence from Australia, in particular, as to how the wording can make a difference of up to 20 per cent. in the result.
One must not load the question in this way. In our view it has to be put much more informally when trying to press the


person who is receiving the document to go either for a Crown court or for a magistrates' court. I think that the principle is sensible, but I hope that, after it has been aired today and no doubt discussed in a number of learned journals, and further discussed in the Home Office, it will not be necessary for the House to proceed to a vote. If it does, we shall be against it.

Mr. Thorne: Will the Minister clarify for me precisely the way in which he will implement what is desired through the new clause, without in fact accepting it? If he will spell that out, it may be possible for me to ask leave to withdraw it.

Mr. John: I will respond to my hon. Friend. The rules of court are made by the Rules Committee, and I have undertaken to initiate discussions with the Rules Committee to see whether it is desirable and appropriate to do it in that form. That is what I have undertaken, and that is the limit of my undertaking. If it can be done as a rule of court, it is much more flexible than to enshrine it in a statute, because hon. Members would all be waiting for another Criminal Law Bill in order to be able to change it if things had gone wrong in the meantime.

Mr. Thorne: I am grateful to my hon. riend. In that case, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 17

PROTECTION FROM EVICTION WITHOUT DUE PROCESS OF LAW.

'(1) Without prejudice to the Protection from Eviction Act 1977, section 1, it shall be an offence to deprive any person who continues to reside in any premises after the termination of a lawful occupancy of their occupation of those premises or any part of them otherwise than by proceedings in the court.

(2) For the purposes of this section "lawful occupancy" shall include the occupation of premises by a person whose tenancy was granted by a person who—

(a) had a right to occupy the premises but
(b) was restricted by a condition of that right to occupy (however framed or worded) from creating such a tenancy.

(3) A person guilty of an offence under this section shall be liable—


(a) on summary conviction, to a fine not exceeding £400 or to imprisonment for a term not exceeding 6 months or to both; or
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or to both.

(4) Nothing in this section shall be taken to prejudice any liability or remedy to which a person guilty of an offence thereunder may be subject to in civil proceedings.

(5) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager or secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against and punished accordingly.

(6) For the purposes of this section the court shall be—

(a) the county court, in relation to premises with respect to which the county court has for the time being jurisdiction in actions for the recovery of land; and
(b) the High Court in relation to other premises.

(7) Nothing in subsection (6) above shall affect the jursdiction of the High Court in proceedings to enforce a lessor's right of re-entry or forfeiture or to enforce a mortgagee's right of possession in a case where the former tenancy was not binding on the mortgagee.'.—[Mr. Lee.]

Brought up, and read the First time.

Mr. Lee: I beg to move, That the clause be read a Second time.

Mr. Alexander W. Lyon: On a point of order, Mr. Speaker. New Clause 24—Enforcement of rights over property— which has been selected for discussion, is about the same issue as New Clause 17. It might be for the convenience of the House if we debated them together.

Mr. Speaker: Is there any objection from the Minister?

Mr. Merlyn Rees: No.

Mr. Speaker: Is it convenient for these two new clauses to be discussed together? I gather that the House agrees. We may also discuss the following:

Amendment No. 37, in Clause 7, page 7, line 9, at end insert—
'(1A) Subject to the following provisions of this section, any person who is on any premises used wholly for residential purposes as a trespasser is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of a person


who, not being a displaced residential occupier, is nevertheless entitled to occupy the premises and who, at the time when the requirement to leave the premises is made, both intends within six weeks either to occupy the premises himself or (while remaining so entitled) to secure their occupation by some other person and informs the trespasser or causes him to be informed accordingly. The provisions of this subsection shall not make guilty of an offence any person holding over after the expiry of a tenancy or licence.'.

Amendment No. 40, in Clause 7, page 7, line 14, at end insert—

'or, as the case may be, a person within the description provided in. subsection (1A)'.

Mr. Lee: The purpose of the new clause is to extend the scope of protection and unlawful eviction other than by means of a court. One extension of the law in recent years has been the prevention of harassment of people from their homes. I want to extend that protection.
The Bill extinguishes the ancient but admirable provisions of the Forcible Entry Act of 1381. That Act may be a little out of date but the principle behind it—that no one should be removed from his home without due process of law—should commend itself to everyone.
As things stand, any tenant who is protected under the Rent Acts has the advantages of that provision, which itself is in process of being re-enacted in the Protection From Eviction Bill, which the new clause prematurely refers to as an Act. I seek to extend that protection to three categories of people who fall midway between the tenants and illegal squatters.
The first category is sub-tenants who are not lawfully so. In a perfect world, these people should not exist, but they do. They may be unaware that the head lease from which their tenancy derives at second remove, so to speak, prohibits further leasing. This comes to light when the original tenancy ends and they are deprived of protection. Under a normal sub-tenancy, they would step up one rung and become a tenant of the head lessor. But an irregular sub-tenant does not enjoy the protection from dispossession without due process of law.
The second category is similar—those who are tenants of mortgagors. Many insurance companies and building societies include in their mortgage agreements as a matter of course a clause against letting. Those clauses are frequently dis-

regarded, often to no one's detriment. The mortgagee, the building society, knows nothing about it, and it benefits both the mortgagor as landlord and the sub-renant But strictly speaking, it is often illegal.
If, for instance, the mortgagor defaults on his payments and ultimately foreclosure proceedings are taken, not only will the unfortunate sub-tenant have no title but he will be liable to be thrown out on his ear, with none of the delaying processes which court procedures would normally provide. Even more objectionable, he may be liable to be put out in circumstances which may lead to a breach of the peace or assaults.
11.15 p.m.
The third category of person is the licensee—the person who has the right to occupy, but not under any tenancy agreement. For example, there is bed and breakfast accommodation, or shared accommodation in which a number of young people gather together and share a tenancy. In the latter case only one of them is the tenant, the others are in an informal relationship with him or her. The others are licensees, and have no status with the landlord.
If the official tenant falls by the wayside, the others may be thrown out without due ceremony or process of law. I hope to extend the principle of protection to enable more people to be spared from being in the position of being physically thrown out of their property, or having advantage taken of them if they are absent for a period and return to find their belongings out on the street.
That was one of the first things the Labour Government of 1964–70 did, on the initiative of Dick Crossman, in the Protection from Eviction Act. This was re-enacted more extensively in the 1965 Rent Act and is about to be consolidated in the Protection from Eviction Bill that is proceeding in parallel with this legislation.
I propose to extend the scope of that to various other categories of persons who, although their position is perhaps unlawful, are in a different category from those who enter premises without any title at all. I want to establish the distinction between the squatters on the one hand—and I shall not go into the moral and economic circumstances giving rise to this now—and persons, on the other hand,


who have some kind of lawful right to be on premises. These are people who, in good faith, become licensees. It is right to extend to them the measure of protection enjoyed by protected tenants.
I do not think I need to say anything now about the penalties. These are very much in line with the penalties for tenants as a whole.
In the final subsection there is a provision to preserve the position of the lessor's right of re-entry or forfeiture in the event of default on a mortgage. I am not sure, on reflection, whether this was necessary.
I hope that the Minister, who has had a not exactly unruffled evening, will look at this new clause with sympathy.

Mr. Alexander W. Lyon: New Clause 24, which is being dealt with at the same time as New Clause 17, seeks to meet a loophole which has been disclosed by the Law Commission but which is not entirely closed by New Clause 17. It is a loophole which I believe was not intended to be left by the Government or by the Law Commission.
The Law Commission said that we should abolish conspiracy to trespass and put in its place five new offences covering the total area that was thought to be necessary in criminal law, leaving the rest of the area involving conspiracy to trespass to be dealt with in the civil law. For that purpose it proposed five new criminal offences in Part II of the Bill and moved to abolish the statute of forcible entry on which reliance had been placed in establishing a case of illegal squatting.
It is important to examine how the illegal squatting movement came about It now has a good deal of moral support, and to some extent illegal backing. The movement got under way when some keen social workers discovered that by using the statute of forcible entry one could prevent a landlord from re-entering his premises by force to regain premises which were lawfully his and replacing somebody who had no tenancy or legal right in those premises. Before he could establish his legal right, he had to go to court, and there was a certain delay involved in that process. The situation of delay that then arose took on a certain moral status which has now been proved by almost all

the social organisations as a way of dealing with homelessness
The Law Commission was careful in its report to try to hold the balance between an unacceptable form of behaviour which ought to be criminal and cases of squatting which they wished to leave to civil remedy and to be dealt with through the civil courts. I fear that by seeking to abolish the statute of forcible entry, the Law Commission has taken away the basis on what the squatting movement rests. Unless a situation in which the owner wishes to reclaim his property is covered by Clause 6 of the Bill, there is nothing to stop the owner from exercising his power to return to his property.
We now have the absurd situation in which the owner is forbidden to use violence to get back on to his property—"violence" being rather more restrictive than the "use of force"—but can use force if the situation is not covered by Clause 6 relating to anybody on the premises who is trying to resist the entry of the owner. In those circumstances an illegal squat could give rise to certain difficulties in this respect. If the squatters were there on the premises and it was known by the owner that they were there, he could not enter by violence because he would be committing an offence under Clause 6, unless he were a "displaced residential occupier" under Clause 6(3), but he could enter by force. He could not knock down the door, but if he used a jemmy to force open the door, he could go in and exercise his right under common law to go back on his premises by force. He could not be prevented from doing that under the statute of forcible entry because that is repealed by Clause 13.
I doubt that the Law Commission or the Government intended that that should take place. Both thought that illegal squatting should be a matter for dispute between the squatters and the owner in the civil courts and not in the criminal courts. It should certainly not be decided by strong-arm methods such as those used by Rachman. None of us wants to go back to that. Except in the circumstances covered by Clause 6, we shall leave that loophole open.
The unscrupulous owner of property who wishes to exercise force to get back may use force, short of violence. when


there is somebody on the premises or force and violence if for some reason the premises are empty because the squatters have gone to work or something of that kind. That was never intended by the Law Commission and I am sure that it is a lacuna in the Bill.
I hope that the Government will look at the matter. I am sorry that when I put the new clause down in Committee I was not able to move it at the appropriate time, and I recognise that the new clause is defective as a means of dealing with the problem. I put it forward merely for consideration by the Government and the House, but I am sure that if the Government agree that there is a lacuna they could remedy the matter in the Lords and bring it back here in due course. It may be that if the Government agree that the lacuna exists, we could accept the new clause, recognising that it would need amendment in the Lords. If that is the only way in which the matter can be dealt with, I hope that this opportunity, late though it is—and I accept that it is not a happy method—will be accepted as a way of dealing with the problem.
I am sure that if the Bill goes through in its present state it will cut away the ground from beneath the squatting movement, and I doubt that many hon. Members on this side of the House would want to do that.

Mr. Patrick Mayhew: The case that the hon. Member for York (Mr. Lyon) has just dealt with may or may not be a lacuna in the Bill and represent something that the Law Commission overlooked. We want to hear what the Government have to say on that. We take the view that the really offensive element in the use of force for the purpose of regaining occupation of premises lies in someone using the premises being put in fear or being likely to be put in fear by the use of force. That is what Clause 6 seeks to control.
We should not, on present advice, want to go along with the hon. Member for York on the lines that he suggested. We want to hear what the Minister has to say.
I now turn to New Clause 17 and the speech of the hon. Member for Birmingham, Handsworth (Mr. Lee). It seems that the class of occupier with which the

hon. Member dealt in his speech is certainly in need of a remedy. However, we do not think that the criminal law needs or ought properly to be imported to support occupiers in such circumstances.
I now turn to the proposals contained in Amendment No. 37, which we tabled. I wish that we should take a vote upon those proposals in due course. They seek to amend Clause 7, that being one of the most important clauses in the Bill. It is the clause that would make it a criminal offence to refuse to leave someone's home when required to do so by the displaced residential occupier, as defined in Clause 12 of the Bill, having entered those premises as a trespasser.
11.30 p.m.
Within these narrow confines, Clause 7 applies criminal law to squatting in other people's homes. The reason upon which Ministers have founded this departure in criminal law has been the sense of outrage that refusal to leave someone else's home causes. As far as it goes, we welcome the innovation. The Government have correctly identified the sense of outrage as a factor that properly gives this conduct a criminal quality. But they have not gone far enough. They have grasped the nettle, but they have not pulled hard enough.
The Government have left outside the amibit of criminal law squatting in other residential premises where a refusal to leave will cause no less injustice and will give rise to no less hardship or outrage. The purpose of our amendment is not to alter the principle in Clause 7 but rather to extend the ambit of its application, to apply it consistently and not to leave it limited to the displaced residential occupier who is so narrowly defined in Clause 12(2).
We want to give the same protection of the law to prospective council tenants. If a person has waited patiently on a council housing list for many years—as have many of our constituents—and his turn finally comes up, his outrage is no less if, having chosen his decorations and laid a carpet, he finds that squatters have taken over his new home, yet the clause excludes such cases. It is no good saying that these are fanciful or imaginary circumstances. We have all read of such cases.
We want to give the same protection to families wishing to resume possession of their homes. They may have returned from working abroad, they may be the families of Service men or of retiring police officers. They may have complied with the requirements of the Rent Acts and obtained a right to possession by lawful means and then find that squatters have moved in before they can repossess their property. All that separates them from being displaced residential occupiers is the fact that they have not spent one night under their own roof. Not many people would immediately see that this made much difference to the moral quality of the action of the squatters in refusing to leave when required to do so.
We want to give the same protection to, for example, agricultural workers and employers. A herdsman may be changing jobs and propose to move from one service house to another—which is still possible despite recent legislation. His furniture may be packed and his replacement ready to move in when squatters take over the home that he is about to occupy. Such a case would be exempt from the provisions of Cluase 7.
These cases are not only real-life instances, but are the sort of cases that are giving rise to exactly the same degree of outrage that is the main justification for the innovation represented by Clause 7 and upon which Ministers founded the legislation. It will not be any less marked than in the case of a residential occupier. Each of those ought to be embraced within the provisions of Clause 7. The criminal law and the sanction that it gives ought to be available to them.
I hope it will be seen at the outset that our amendment applies only to residential premises. I understand the fear that it might be taken to apply to industrial premises, to have a bearing upon trades disputes, and perhaps to apply to academic disputes—the occupation of universities or schools—but it does not. Neither Clause 7 nor the amendment apply to industrial premises or to any of those that I have indicated, or to any premises not intended to be used for residential purposes.
Next, the amendment does not apply to premises which, although residential

in character, are intended to be kept empty. Here again I can understand the fear that an amendment along these lines might catch the owner of premises who wishes to keep them empty for a long time to capitalise on the increasing value, but it does not. That would be a different state of affairs, and not one to which we should wish the criminal law to apply.
In the terms of our amendment there has to be an intention to occupy the premises for residential purposes oneself within six weeks—a very short time—or an intention to secure such occupation by someone else within that period. An example is the service tenancy situation —the herdsman moving his job—that I have indicated.
Moreover, under the terms of the amendment that intention has, in either case, to be expressly communicated to the squatter at the time when he is required to leave. It would have to be made plain to the squatter that it was the intention of the person entitled to occupy that house either to occupy it himself within the next six weeks, or to secure its occupation within that period by somebody else. If he were a council housing manager, it would be somebody on the housing list, and if he were a farmer, the herdsman could occupy the service house.
Lastly, the provisions of the amendment shall not apply to any person whose occupation is a holding-over after the expiry of a tenancy or a licence because that, again, is a different situation and one giving rise to difficult questions of law and of fact.
I am fortified in asking the House to accept the amendment not only by the fact that it conforms so desirably to the principle of Clause 7 but by the fact that on Second Reading the Home Secretary was plainly aware that it was far from self-evident that the scope of Clause 7 as drafted was sufficient. The right hon. Gentleman said:
The Government will be giving further consideration to the possible extension of Clause 7, bearing in mind the views expressed in both Houses and the possibilities of improvements in civil procedures."—[Official Report, 3rd May 1977; Vol. 931, c. 239.]
In the event the Government have not made any change, and the reason is set out in a letter that the Minister of State was kind enough to send me recently. He founded that decision upon new rules of


court, which have recently come into force, the effect of which, he said
has been to relieve the plaintiff of some of the burden of taking reasonable steps to identify the major difficulties experienced by those, such as local authorities, who have used the procedure regularly. The effect should be to speed up the procedure considerably.
We have to remember that the Law Commission reported that under the expedited procedure—but before this recent amendment—possession commonly takes two months. It said:
The new rules will diminish the burden on, for example, local authorities to take all reasonable steps to identify the trespassers.
The new rules provide that it may be stated by affidavit that the names of the trespassers are not known.
However, even before the amendment was introduced it was held in a case before the Court of Appeal that where there is a fluctuating occupation of property it is not necessary to try to get the names. The relaxation, although it is welcome and will have some speeding-up effect, is not likely to make much difference to the time that it takes a local authority, for example, to get possession of its premises from squatters.
It must be noted that every final order may be taken to appeal, even under the expedited procedure. I believe that there are many squatters who would wish to avail themselves of that right. Leave to appeal is not necessary. Even now the time involved is substantial. Even if the new rules were to halve the delay and reduce it to a month, we believe that a month excluded from possession of one's own premises, or council premises by squatters who refuse to leave when told to do so is an intolerable injustice.
It is in these circumstances that we think it necessary to add the sanction of the criminal law to the imperfect civil remedies that now exist. The Law Commission said in its report at paragraph 244:
The unlawful occupation can and does on occasions cause considerable hardship to individuals, to property-owning bodies and local authorities
In the next paragraph it stated:
It has become a common way of obtaining precedence over those who have been waiting for accommodation for a considerable time.
I hope that by referring to the basis upon which the Commission made its recom-

mendation, albeit too narrowly as we believe, the true reason for the amendment will be seen—namely, to extend the application of the principle of Clause 7 to cases of injustice when squatters refuse to leave when asked to do so by somebody who is entitled to occupy the premises and needs them himself within six weeks, or to put someone else into them within six weeks, in circumstances in which the outrage, if the squatters are permitted to get away with it, will be no less than in the circumstances that are covered by Clause 7.

Mr. Fairbairn: It is important to understand that there are grave principles at stake if we allow the concept that the hon. Member for York (Mr. Lyon) advanced, which he called the illegal squatting movement, a moral status. That would be to allow the concept that persons who have no right or title to enter premises have some moral right illegally so to do. If, as he argued in Committee, the squatting movement has done a great deal to cajole local authorities to provide houses, we might as well say that the bombing movement has done a great deal to improve security in the Palace of Westminster, or that the illegal hijacking movement has done a great deal to promote the searching of those who carry bombs on aeroplanes. It is a dangerous principle.

Mr. Russell Kerr: Rubbish.

Mr. Fairbairn: If you wish to intervene, I shall be delight to give way.

Mr. Speaker: Order. I do not wish to intervene.

Mr. Fairbairn: I am obliged, Mr. Speaker. I am sorry that I said "you", Mr. Speaker, when I meant "it".
That argument is an indication of the danger that we may lose our principles if it is regarded, if I heard the word that was uttered from a sedentary position correctly, as "rubbish" that such illegal activity should be regarded as dangerous. I do not suggest for a moment that the Home Secretary said such a thing, but I think I heard it said from a place not far removed in metric distance from where the right hon. Gentleman sits, although divided, thank God, by a mighty gulf. It is important that in this House it should


not be considered moral conduct deliberately to engage in illegal activity. That, as I understand it, was what was being argued by the hon. Member for York. In Committee, he did not, thank God, talk of the illegal squatting movement. At least then it was only the squatting movement to which he attached a halo. Now he thinks that it has benfited by being the illegal squatting movement.

11.45 p.m.

Mr. Alexander W. Lyon: I am sorry that the hon. and learned Gentleman should think that there is a difference. All that I was indicating by that adjective was that a squatter had no lawful right to occupy someone else's property. I hoped that I was meeting the point made in Committee by the hon. and learned Gentleman. Whatever the rights and wrongs of squatting in law, there can be few hon. Members who do not have some sympathy with the many homeless people who have found roofs over their heads in premises that would otherwise have remained empty for commercial exploitation. For that reason many people who support law and order feel that some kind of squatting is morally acceptable.

Mr. Fairbairn: I appreciate that the hon. Gentleman does not make much distinction between legality and illegality. Therefore, for him to use the word "illegal" is just a triviality. However, it is important to remember that it cannot be classified by saying that, because some premises might be used for industrial or development exploitation, therefore inevitably the invasion of other people's property to their disturbance and without remedy is necessarily a good thing.
I am extremely worried about the concept that people should be entitled to occupy at will the premises of what is loosely described and undefined in any proper way as a "displaced residential occupier". I asked in Committee what that meant, and I got no proper answer.
What is a displaced residential occupier? It it a person who has two homes? Is it, for instance, a Member of Parliament who lives for five days in this city and two days in his own home, which is otherwise empty? When he goes home at the weekend, is he a displaced residential occupier or is he not?
If he happens to have been to Bulgaria or to Russia for a four-week visit at the request of the Supreme Soviet and comes back to his house, which he has not occupied and to which he has an alternative, is he a displaced residential occupier?
I cannot find these definitions in the Bill. There is plenty of protection for squatters and trespassers as displaced residential occupiers, but there does not seem to be any protection for the genuine owner or tenant. That is what I find immensely difficult about the Bill. There is no proper definition. Clause 12 refers merely to those who are displaced residential occupiers as the result of squatting by others. But nowhere does the Bill define the rights of a person who owns property and who may want to live in it for a certain period.
What I find difficult and dangerous is the concept that an owner or tenant who vacates premises for whatever reason or time should essentially be given no right against the person who invades that property at will and at choice, for whatever reasons, and who decides that that is the property that he will occupy, whether it be your house, Mr. Speaker, or anyone else's house. I imagine that since you spend so much time here, Mr. Speaker, your house would never qualify. You will always be a displaced residential occupier. But, assuming, Mr. Speaker, that you come to my constituency for the recess—which, with luck, will last for the next five years—how will you ever get back into Mr. Speaker's house? The Act does not provide that you can. Essentially the Act provides for the invader and not for the person against whom invasion is carried out.
It may be felt that morally a person who does not have a house has a right superior to the person who owns one but does not happen to be in it. That is a moral judgment, but as a matter of law it is important that the person who has the right to be in it should have a right superior to that of the person who decides at random to occupy whatever house he chooses.
It is similar to the situation in which a person decides to drive away a car on the ground that he does not have enough money for the bus and anyway the car is in the street and no one is using it at the time. That is a dangerous principle.


It may be a good principle against lethargic local authorities or slothful development organisations which leave premises empty, but it is a bad principle if it extends arbitrary occupation and theft against the desires, interests and rights of the owner or the tenant.
It is important that we should pass Amendment No. 37 because it strikes a very sensible balance between the concern for those who merely wish to shelter in accommodation which is unused and the rights of those who do not wish their property or premises to be invaded. It is important that the House should not throw away principles of law and morality merely in order to see whether it can conserve what the hon. Member for York called illegal rights of an illegal movement.

Mr. Merlyn Rees: I shall deal first with New Clause 17. My hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) is concerned that illegal subtenants may not be evicted except through court proceedings. I do not dispute that there is a problem that needs to be looked at here. We know that there have been cases where people who thought that they were legitimate tenants have found that they were liable to eviction because their landlords were prohibited from letting to them by terms in their own leases or mortgage deeds. But I wish to be helpful and my advice is that the Bill is not the place to try to deal with the problem.
The House will be aware that my right hon. Friend the Secretary of State for the Environment is currently conducting a review of the Rent Acts. This review includes the basic provisions on protection from eviction without court proceedings which are being consolidated in the Protection from Eviction Bill which is now before the House and to which the new clause in anticipation refers. The consultation paper which my right hon. Friend issued earlier this year specifically referred to the problem of illegal subtenants and canvassed views on how the conflict of interest between them and the head landlords and mortgagees might best be resolved. The Law Commission has also been looking at the problem as part of its work.
I ask my hon. Friend to accept that this is a problem which needs to be dealt with, but not in this legislation. It

needs to be dealt with as part of the law of landlord and tenant and not in a criminal law Bill. It raises some technical and difficult aspects of the law of landlord and tenant, but my strong advice to my hon. Friend is that it is not appropriate to proceed with it in this way, although the Government share his concern about the matter.
My hon. Friend the Member for York (Mr Lyon) raised an aspect which is closely allied to the matter argued by my hon. Friend the Member for Handsworth. My concern is that there may be a genuine problem lying behind the new clause. Looking at the new clause and the amendments, I can see what my hon. Friend means when he says that he wishes it had been possible to debate them in Committee.
The precise purpose and effect of the clause are in doubt. The clause appears to be declaratory. It does not say that the use of force shall be a criminal offence, and it does not provide for penalties in the event of force being used or authorised. Nor is it clear on what might amount to the assertion of one's right over property. It must be intended to imply a right as against someone else's rights. But it does not seem satisfactory to have on the statute book a provision the meaning of which is in serious doubt.
It would have been very much better if the matter had been discussed at an earlier stage. Listening to my hon. Friend the Member for York, I wanted to be helpful. But I cannot be, in view of the weakness of his clause.
Three matters arise on Amendments Nos. 37 and 40. The first is to extend the benefits of a displaced residential occupier in Clause 7. The hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn), who has two homes, will be glad to hear that he is a displaced residential occupier on the basis of the definition in Clause 12.
As I say, the amendments make three extensions of the benefits of a displaced residential occupier. Those are to a person who is entitled to occupy the premises, to a person who intends within six weeks to occupy them himself or to secure their occupation by some other person, and to a person who makes this known to a trespasser on the premises in question.
There are differing views about squatting, and squatters are of differing types. Generically, the word has a meaning, but in practice all kinds of people are involved.
I was not present at the Fifth Sitting of the Standing Committee, but I read the debate with interest. As the House knows, the Government have kept an open mind on the difficult question of the proper extent of Clause 7 right up to this stage of the Bill. I said on Second Reading that we were anxious to hear views of the House about the scope of Clause 7. There was an extensive and extremely useful debate in Committee. In addition to debates in Parliament, we have had a large volume of correspondence on the Bill, much of it concentrating on Clause 7. The Government have also initiated a series of discussions on Clause 7 over the last few months with the police, the local authority associations and the Greater London Council. As usual in the case of consultation on a complicated issue, the result has not been a single clear message suggesting that one particular decision would be best. But consultation and debate have brought to the surface many points, which we have considered very seriously, both suggesting that Clause 7 should be extended and that it should be left in its present form.
My hon. Friend the Minister of State wrote to hon. Members who served on the Standing Committee to inform them that the Government had decided not to table amendments to extend the scope of Clause 7. I listened carefully to what my hon. Friend said with a view to seeing what could be done. I put it to him that there is, first, the question of civil proceedings. It is better that matters of this kind should be dealt with in that way than by the criminal law.
12 midnight
As my hon. Friend informed his colleagues on the Committee, the Supreme Court Rule Committee has prescribed improvements in this procedure which came into force on 4th July. The major criticism of that procedure has not been the delay between the issue of a summons and the making of an order. On average that only takes around 23 days. In cases where speed is of the essence it can take much less time than that. The problem has been the time and effort

sometimes required of the plaintiff to show that he has taken reasonable steps to identify defendants. Local authorities have put that to us. This has often meant several visits to the property in question at distinct intervals. The new changes in the procedure relax this requirement and they have been widely welcomed by the local authority associations.
The effect should be to reduce considerably the time taken from discovering squatters in a house to securing their eviction. Parallel changes in the county court rules are expected before the end of the year. There is an obvious link between the efficiency of the civil procedure and the scope of the criminal offence in Clause 7. We welcome the changes in the civil procedure. In our view, it would be a mistake to contemplate any further intrusion of the criminal law into an area that has traditionally been the preserve of the civil law, particularly until there has been a reasonable opportunity to assess the impact of these changes.
Secondly, there are great difficulties of enforcement in the case of an offence turning on the right to occupy property. The Standing Committee discussed the drawbacks of the concept of a displaced residential occupier. Of course, there will be anomalies and awkward cases at the margin, but that is bound to be true of any provision that steps short of making into a criminal offence any trespass at any time in any place.
The great advantage of basing the offence on the displaced residential occupier is that it should not be difficult to establish his status. His personal possessions will be inside the premises. It will be a matter of hours, weeks or, at most, months since he was living there himself. He will be known to neighbours. Once the clause goes beyond the displaced residential occupier, the difficulties of enforcement increase considerably, as is illustrated by these amendments. They would require a police constable to judge who was entitled to occupy particular premises and whether they intended to occupy them or arrange for someone else to occupy them within six weeks.
These are complicated matters. If these amendments were included in the Bill it is questionable whether the police would


ever feel on safe enough ground to exercise the powers that they would confer. I use those words advisedly.
Thirdly, there is the danger of abuse. Hon. and learned Members opposite gave the impression in Standing Committee that they did not want a criminal offence which could be used by a landlord who merely wished to keep premises empty. The Government certainly do not want that. I appreciate the purpose of limiting the extension to a person intending to see that the premises are occupied within six weeks. But how is that limitation to be enforced? I am afraid that not all those who might wish to take advantage of this clause are honourable and truthful. There could be a more complicated provision to discourage abuse, perhaps with a criminal offence of making a false statement about one's intentions. But that would not be free from difficulties. Intentions can be changed before they are fulfilled, by honest people as well as by rogues.
If investigations took place in the event of premises not being occupied within six weeks, how would it be possible to demonstrate that six weeks earlier the intentions had not been genuine? The inevitable conclusion is that these amendments would be wide open to abuse and very little could be done effectively to remove that defect.
I listened carefully to the hon. and learned Gentleman. I should like to be helpful. I am turning down the Opposition amendment not because we have already made our decision but because we have improved the civil procedures, and I think that that is the correct way in which to move. I have no objection in principle, but I think that we should be moving in the wrong direction if we proceeded as the Opposition have suggested, involving the police in a more complicated measure. I hope that the Opposition will not press the matter to a Division. I cannot advise my hon. Friend to support them.

Mr. Farr: Despite what the Secretary of State has said, I should like to say a few words in support of what my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) said about Amendment No. 37.
I do not think that there has been any reference in the debate to the position of

charities that own charitable houses when trespassers or squatters enter into occupation. The House Secretary certainly did not refer to it. It is no use his saying that the matter has not been placed before him. As long ago as last year I wrote to him informing him of the position of one charity, and I received a reply from the Minister of State. In that case a group of squatters from a university had entered into possession. My local council and I pointed out to the Home Office that it appeared that the Bill as then framed, seven or eight months ago, would not enable a charity to regain possession of its houses.
It would be wrong of the House to leave this matter tonight without considering the position of the thousands of properties owned by charities which at present have no redress in circumstances of the kind that I have described. My hon. and learned Friend put the position very well in his amendment. I hope that it will be pressed to a Division and that the House will accept it. Those who run a charity with a number of houses under their supervision will then be able to require illegal squatters to leave the preises, provided an undertaking is given that those who operate the alms houses will see that the premises are occupied or have them occupied by a legal tenant. It is not a matter that the House can simply ignore.
I have with me a letter from the Home Office, written last December or January, saying that the charities are not at present protected and that where squatters enter into charity properties, of which there are tens of thousands, possession cannot be regained. It is deplorable that the Government have been acquainted of the problem and have chosen not only to reject a solution in correspondence with me but not even to refer to the matter in the right hon. Gentleman's speech.
The right hon. Gentleman spoke of the civil procedure being speeded up. I am told that it will probably still be too slow for many people. If the applicant loses in a civil action he must meet the costs, which can be formidable and a great deterrent, especially to those responsible for running charities.
The other point on which I wish to back up my hon. and learned Friend the Member for Royal Tunbridge Wells is about agricultural properties, and the


danger of the situation which could arise for a farmer where a farm worker's house becomes vacant for a short time. As the Bill is now framed, there is a risk that a farmer, in the course of changing employees, may find that his property, which he intends should be occupied by a new milkman or cowman, is occupied by illegal squatters. The amendment which my hon. and learned Friend has tabled would give a farmer in this position the ability to regain possession much more readily and satisfactorily than can be done as the law stands. I therefore support what my hon. and learned Friend has urged and I hope that this amendment is pressed to a Division.

Mr. Graham Page: I am extremely disappointed, as are my hon. Friends, at the Home Secretary's answer. He based his argument against Amendment No 37, if I understood him correctly, on the difficulty of proof. He said that it would be far more difficult to prove that a person is entitled very soon to become a residential occupier than to prove that he has vacated recently and intends to come back again. That is what a displaced residential ocupier is. I do not think that there is any difference in the difficulty of proof. It is the same proof. There will be difficulty at times in proving that a person is a displaced residential occupier, that he vacated with the intention of returning quickly when he has gone on holiday for a time and intends to come back. He has to prove that. What is so difficult about proving that there is a person titled to occupation and that he intends to occupy or to secure occupation for somebody else in this short, very modest, period of six months?
The Home Secretary said that we should rely on improved civil proceedings. We have not yet seen that they are improved. We were told that about 10 years ago when the new rules of the county court were produced. I saw no shortening of the period of getting a decision under those rules and I have no faith that the period for getting possession will become any shorter.
I see difficulties in two major cases which this amendment, if accepted, would relieve. The first is the case of sale and purchase. If a vendor vacates property—he may be moving into his new home—for a short time, and the purchaser is un-

able to move in at a moment's notice, when the vendor leaves the property will be vacant for a period. Why can we not protect that property in the same way as we protect the property of a displaced residential occupier? That occupier is what I call an entitled residential occupier. We are not extending the period over months, or anything like that. This is a person who is coming in the very near future. That occurs particularly where there is a purchase and there is a gap between the vendor going out and the purchaser coming in but there is no intention of keeping the property empty for a long period. It is grossly unfair that we should not give the same protection then as we are giving to the displaced residential occupier.
The second important case is that of a council and council tenants. In that case a council with a waiting list has to choose tenants, the tenants have to view the premises, and then they take time to move in. During that time this Bill will give no protection against squatting.
I had hoped that this was merely a sideways inclusion of a group of people who deserve protection—the vendor and purchaser of property, the council and council tenant. The Home Secretary has not put forward any claim that the clause is badly drafted or that further modifications are required in it. It covers exactly the cases that we have in mind, and I hope he will think again. If not, we shall divide the House on it.

12.15 a.m.

Mr. Toby Jessel: I, too, express the hope that the Home Secretary will take another look at this matter. Surely, if we simply make it a criminal offence not to leave a private house, whether privately owned or rented, when requested to do so by the lawful occupier, the squatting fraternity will quickly turn its attention to council properties, as described by my right hon. Friend the Member for Crosby (Mr. Page), and all the problems now being faced in the private housing sector will have to be faced in the public sector. This will surely create an immense and unnecessary burden for local authorities, not only where houses owned by local councils are affected and where new tenants are being awaited—perhaps a council flat or house has to be done up and painted and put


on offer to other tenants—but also with newly built council houses, which will become the subject of the attention of squatters. So will houses owned by housing associations and non-profit-making bodies, which now run about 3 per cent. of the total housing stock—a proportion which is growing.
Surely if we are to argue that squatting is detrimental to the owners of property, we must equally be concerned about prospective council tenants, who in many cases have been waiting for many years on council housing lists. Genuine homeless families being rehoused by local authorities will have their prospects jeopardised if squatters invade council properties in large numbers.
The Home Secretary has not given this point special weight, and he ought to take another look at it. If he does not, I hope that the official Opposition will divide the House and win on it.

Mr. Douglas-Mann: I hope that my right hon. Friends will take note of the arguments presented by Conservative Members. A fictitious problem has been created of the squatter moving into the private residence. The problem was initiated by a letter in The Times which subsequently proved to be completely phoney. We have produced legislation to deal with this fictitious problem, and now we are meeting the argument from the Conservative Benches that we have to transpose the solution to this fictitious problem to quite a different problem and to make it a criminal offence to squat in property which is not residentially occupied. The arguments presented by the Opposition are very strong arguments against Clause 7 and against Part II of the Bill, but they are not arguments for extending it in the way proposed by them.

Mr. Patrick Mayhew: The Home Secretary was, I thought, plainly unhappy in the speech that he delivered in rejecting the amendment. Having regard to the three grounds on which he based his rejection, I was not entirely surprised, but I genuinely believe that his objections are founded upon some degree of misconception. I hope that I may be allowed very briefly to try to explain why that is so.
The Home Secretary's first ground was that it is far better to leave these matters to the civil remedy of the court rather

than the criminal remedy. In may ways all of us would prefer to see right being done by civil remedy rather than by resort to the criminal remedy. But that is not always possible if we are to secure justice.
The Government have in Clause 7, as at present drafted, recognised that it is necessary to have to resort to criminal sanctions if justice is to be done. The reason they have given for that, with which we entirely agree, is that the ordinary member of the public is outraged if a displaced residential occupier, having required a squatter to leave, is still unable to get into his house. He thinks that it should be against the criminal law and we agree.
The right hon. Gentleman failed to show that there was any difference in the principle of any of our other examples—the council tenant, the farm worker and others—or that there was any difference in the degree of outrage of the ordinary man in the street if a squatter failed to leave when called upon to do so by any of these classes of person.
Second, the right hon. Gentleman said that it would he difficult to establish whether someone claiming this benefit had the right to occupy the property. But how, for instance, can there be any difficulty in establishing that the council house manager has the right to occupy the house on behalf of the council or to secure its occupation by someone at the top of the housing list? I hope that even now he will recognise that that was an extraordinarily bad point. The same can be said of a farm owner who wants a service house for a herdsman who is due in a week.
Third, the right hon. Gentleman said that it was difficult to show intention. But the purpose of the new clause is that of Clause 7—to deter a squatter from failing to leave in these circumstances. That genuine intention would have to be shown. It should not be difficult, but if it was not shown the prosecution would fail and costs would follow.
No answer has been given to our examples, and I hope that the right hon. Gentleman even now will think again. If not, we shall certainly seek to divide the House at the appropriate time.

Question put and negatived.

New Clause 18

DETERMINATION OF DEFENDANT'S TITLE

(1) Where, in proceedings under Part II of this Act, the prosecution must prove that the defendant was a trespasser and—

(a) the defendant claims that he was not a trespasser; and
(b) the alleged offence is triable either way, the trial of the alleged offence shall be conmitted to the Crown Court.

(2) Where, in proceedings under Part II of this Act, the prosecution must prove that the defendant was a trespasser and—
(a) the defendant claims that he was not a trespasser; and
(b) the alleged offence is triable only summarily,
the proceedings shall be adjourned to the county court for the status of the defendant to be determined.

(3) A county court shall have jurisdiction to determine any question as to any matter referred to it under subsection (2) above or as to any matter which is or may become material for determining any such question.

(4) A county court shall have jurisdiction to deal with any reference to it arising out of subsection (2) above, notwithstanding that by any reason the reference would not, apart from this section, be within the jurisdiction of a county court.

(5) The Lord Chancellor may make such rules and give such directions as he thinks fit for the purpose of giving effect to the provisions of this section.

(6) The power vested in the Lord Chancellor by subsection (6) above may, when the Great Seal is in commission, be exercised by any Lord Commissioner.—[Mr. Lee.]

Brought up, and read the First time.

Mr. Lee: I beg to move, That the clause be read a Second time.
Although extensive in wording, the new clause is on a narrow point. It is incompatible with Clause 12(7) which seeks to maintain summary jurisdiction in disputes of title. I seek to remove these vexed questions from magistrates' courts. Where a defence requires investigation of the title of a defendant—to determine, among other things, whether he is a trespasser—then, so far as the matter is before a magistrates' court, it should stand adjourned and be determined by the county court, the appropriate civil court. Where a defendant specifically claimed that he was not a trespasser, and the alleged offence was triable in the Crown court, that matter

would be determined in the Crown court by the trial judge there.
The new clause introduces a somewhat novel procedure. It is not quite novel, I hasten to add, because the Minister of State has just thrown a quizzical glance in my direction. One of the zanier consequences of our membership of the Common Market is that certain matters may be adjourned in our courts, and subjected to the courts of the Community. Alleged offences under the Immigration Act as they appertain to citizens of member States of the EEC are an example of this. Therefore the principle of standing a matter over for another court to determine is not as novel as it seems at first sight.
The principle behind the new clause is that magistrates' courts have enough to deal with now. Over the years the practice has grown up—rightly, I believe —that their ancient civil jurisdiction should be whittled away. This has now largely gone. Disputes involving the receivership of the Metropolitan Police under the Metropolitan Police Property Act is an example of the surviving quasi-civil jurisdiction exercisable in a magistrate's court.
However, on the whole it has been the practice for a long time to remove from the magistrates' courts all noncriminal matters, other than domestic court matters. It would be a retrograde step if we now foisted on the magistrates' courts the task, to which I do not think that many of them are equal, of coping with the vexatious problems of landlord and tenant.
It is enough for them to have to cope with Stone's Justices Manual, of which there are two voluminous volumes, without dealing with Archbold and Megarry as well. For these reasons I move this new clause, although I do not intend to press it to a Division, so the Minister can relax. I would like to hear how the Government expect to cope with these matters in courts of summary jurisdiction which are, on the whole, quite unused to dealing with civil law in all its complexities.

12.30 a.m.

Mr. John: I looked quizzically at my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) not because of the novelty of this subject and its correlation


with EEC legislation but because of the fact that we debated this subject in Committee at some length. The objections I then raised to this proposal still remain valid.
I believe that the proposal is unfair for two reasons. First, under the new clause in an offence which may be triable either way the defendant would have to go to the Crown court, although he might prefer to go to the magistrates' court. It would be unfair if the matter, having gone to the county court for determination, were to be open to different standards of proof. There would be a balance of probabilities rather than any question of the matter being adjudged to be beyond reasonable doubt. In other words, there would be an unfair difference in terms of standard of proof.
Secondly, the clause is impracticable because even the rules of court, of which I spoke so lovingly earlier, would be unacceptable if the matter were adjourned in such a way as to avoid the inherent delays involved in reference to the county court and determination there. If there were a separate judgment on title in the county court, there would be a separate avenue of appeal from the county court on the subject of title and it might be a long time before the case fell for determination. Therefore, Parliament would be wrong to pass such a clause since its effect would be gravely to prolong the time over which a person might be subjected to a trial.
The clause is unnecessary because there is an unqualified right of appeal from the magistrates to the Crown court upwards. That would involve a defendant who was dissatisfied in pursuing a complete rehearing of the case, including determination of the trial. Therefore, the kind of scrutiny which has been mentioned would take place on appeal.
I do not object to the proposal from any argument about the superiority of magistrates or their great familiarity with trespass, but because the alternative is worse. In practice the determination whether a man is a trespasser in most cases will not be all that complex. Frankly, I do not believe that Megarry or any textbook on landlord and tenant law would be necessary to decide whether a person is a trespasser, and I shall leave the matter there.

Mr. Fairbairn: I fear that according to the law of England I shall be called a trespasser in this matter. This is not a concept known to the criminal law of Scotland, and indeed it has now been abolished in the civil law. Therefore, I find the whole of this clause astonishing.
Obviously Labour Members do not understand the simple way in which we in Scotland approach these matters. Let me illustrate how I, as a simple episcopalian Jacobite, approach the subject. Until recent legislation was enacted, we in Scotland did not recognise the concept of the magistrates' court in the sense of having unqualified people to sit in judgment upon others. We had various summary offences which were categorised under legislation enacted in 1892. All local authorities were asked to send in lists of the matters that troubled them and to suggest appropriate penalties. The penalties ranged from sums of£5 to£30. From Oban, for example, would come cases involving forgery of pound notes and from, say, Stornoway we would hear of cases involving offences related to the leaving of too many perambulators on pavements, and all the rest of it. That is the sort of thing that would be considered appropriate, as a trivial offence, to be judged by lay people.
We do not have this concept of magistrates' courts or that major criminal offences should be tried by a single person or a number of persons unqualified in law, acting as the Bench. If the accused in Scotland are to be judged by their peers, their peers are on the jury. It is appropriate that they should be on the jury and that those who are in judgment and advise on the law should be trained in the law and qualified. That is the almost unexceptionable rule in Scotland. The only exceptions involve trivial offences. That is something that England could learn to its immense advantage. If England did that, the amendment that has been proposed would not be necessary.
I find it extraordinary and amazing that there should ever be a situation in which a person should be put into a position as the accused—or whatever one calls it in England, defendant or prisoner—in which he is able to say that he does not think that the court is good enough because it is a lay court without a jury and that he would prefer to be judged by his peers and a professional judge. I


shall raise this point on other amendments because it is an important difference from which we both have much to learn. There is no such thing in Scotland as election of how one is to be tried.
We have, of course, the independent prosecution service and I hope that hon. Members who represent English constituencies are moving towards favouring that. It is for the prosecutor to say that he takes the view, for example, that an act of driving is worth solemn procedures or that it should be judged through a simple procedure. In Scotland, whether there is a solemn or a simple procedure one is inevitably tried by a qualified judge who has been trained and a member of one of the branches of the legal profession for at least five years and who is not just a layman who has been trained in some odd way. Therefore, the problem does not arise in Scotland.
I find it astonishing that, when the rearrangement of the courts was carried out a few years ago and the Crown courts were created, it was decided that matters which may be serious—and which, as this case has demonstrated, inevitably require a training in law to decide such points as the concept of trespass—should be left to persons who are utterly unqualified to make such decisions. They have no training and are unlikely to be able to comprehend such matters. I am not necessarily saying that we who are trained can comprehend it, but at least we understand that such matters are the purpose of our training.
I hope that the Minister will accept as a matter of principle that if we are going to change the law and its procedures —and commissions are presently investigating those matters—the concept of lay courts, which inevitably gives rise to a choice for the accused person in deciding whether he will be tried in one way or another, is an extremely unsatisfactory and improper penalty to pay for the division between the professional courts and the lay courts in serious matters. That is a division that we do not have in Scotland. It is artificial, wrong and improper. It has no justification in jurisprudence, in morality or in law.
There is an extraordinary contradiction in the provision that a defendant may

claim that he was not a trespasser. I do not know upon what matter of proof he will have to claim that. Will it be enough just to say "I was not a trespasser."? Will he have to establish a balance of probability, which is the civil definition, or will he have to satisfy a jury or magistrates? Will it be enough for his solicitor to say "Look old chap, just write down that you were not a trespasser and you will get out of the magistrates' court and into the next one."?
It would be quite wrong that a person could be advised by a legal adviser to take advantage of a technicality in order to change the forum in which he is tried. We have heard great criticisms of judicial sentences and one allegation is that barristers know that Judge X is a brute, that Judge Y hates rape, that Judge Z does not mind homosexuals, so the counsel plead, falsify, say that a witness is absent and so on in order to get before the right judge with the right client. There have been some unjust criticisms of judicial sentences. This is one of the most difficult human things to do. Too many people merely compare the results and take no account of the human difficulties involved. If a client came before those who make these criticisms, before me and before hon. Members opposite, the sentences would probably be different—and that is an indication of our fallibility rather than of the fallibility of the system. Surely it is wrong that a defendant, merely by saying that he was not a trespasser, should be able to change the forum and, to some extent, choose his judge and accuser.
These are important matters. Whatever happens, there should not be an arbitrary election by which an accused person is able to choose his forum, his accuser and his judge. It appears that we could alter a result in our favour if we took certain steps that we believed to be in our favour. They would not be steps that we were entitled to take but steps that we believed might happen to suit us. If the new clause is accepted, a lawyer would be bound to advise a defendant that it was in his interests to say that he was or was not a trespasser. Apparently no proof would be required. This worries me.
I appreciate that the problem arises out of the system of lay and professional courts in England. If, God bless them,


the English had the sense to abolish that difference, the matter would not arise. I have great sympathy with the new clause, and perhaps it is an indicator that, when the Royal Commission on criminal procedure and pre-trial procedure is meeting, consideration should be given to whether the law of Scotland, naive and simple though it is, might not help to overcome some of the entrenched difficulties of which this problem is merely a derivative child. This would never be necessary if there were not an artificial division between lay and professional courts, and if anything was an example of the difficulties that they create, this is.
I hope that I have not been hostile to the principle of the clause, but it arises from a profound schism which is a wrong one in the approach which the law of England makes to a judgment of these matters.

12.45 a.m.

Sir M. Havers: I must express regret that the hon. Member for Birmingham, Handsworth (Mr. Lee) has exhibited such poor drafting skills, because this clause must be shot down. It is full of holes. Let us look at one or two of them.
The defendant claims that he is not a trespasser. At what stage does he claim that, and who claims it? He is found upon premises. He is arrested and charged. He is remanded, and finally the case comes on. He says nothing, except that he pleads not guilty and raises no defence at that stage.
All the evidence is called—or if it is in London some of the evidence is called—and the case is adjourned for six weeks. He is then brought back, two witnesses are called, and the case is adjourned for another six weeks. All those months later he goes into the witness box and his solicitor asks "were you a trespasser?", and he says "No". That is a claim.
Three months after the case has started in court, which might be six months after he was arrested, the court is faced, having heard perhaps eight or 10 witnesses, with a defendant who claims that he is not a trespasser, or, on looking at subsection (1) (a), with the fact that it is an offence triable either way because he had an offensive weapon. The court then has no option but to commit the case to the Crown court. The defendant might not want that, but there he goes.
The magistrate then turns himself into an examining justice. The defendant has not been warned, and he does not have to give evidence. Suddenly what was an ordinary summary proceeding becomes a committal proceeding. None of the witnesses who have attended over this period of time has been bound over to give evidence at the Crown court. They have all to be brought back. They might not be available, so the court has to adjourn again for them to be available. All the witnesses who turn up may not be necessary, and again there is an enormous waste of public time. Eventually, because the case will not finish that day—the court will run out of time; certainly if it is a stipendiary court in London—there is another adjournment.
As this is no longer a summary proceeding, the whole business has to be gone through again. The clerk might have made a few notes, but now he has to take depositions. The witnesses have to be sworn. The whole procedure is carried out at great length, and everything is recorded. Difficulty might also arise because, these being commital proceedings, the defendant has to be served with the statements of the witnesses. This gets us into the most almighty difficulty.
What about the other provision? The defendant claims that he is not a trespasser, and the case is tried summarily. The case is two-thirds of the way through, huge costs are involved—because the defendant is almost certainly legally aided—and the case has to be adjourned and ends up in the county court.
What happens there? Are there any pleadings? Is there a writ or summons? How does the county court get jurisdiction? What document does the judge have? Does Mr. Snooks suddenly turn up, and does the court usher say "Your Honour, Mr. Snooks turned up last week at Willesden magistrates' court and when he gave evidence he claimed that he was not a trespasser, so the court could not try the case. It sent it to you, Your Honour"? His Honour says "Let us have a look. Where are the documents."? In fact, there are no documents.
Who is to prosecute? Who is the plaintiff? Is it the police officer? Is it the solicitor from the Metropolitan Police? Does that solicitor suddenly put on


points and a wing-collar and gown—not a wig if he is a solicitor. With no pleadings surely he cannot suddenly turn himself into a county court advocate and be allowed to have the case tried in the county court. This is "Alice Through the Looking Glass".
What about the burden of proof? On what burden of proof is the county court judge to operate? Subsection (3) states:
A county court shall have jurisdiction to determine any question as to any matter referred to it under subsection (2) above or as to any matter which is or may become material for determining any such question.
I must tell the hon. Gentleman that to me that is totally meaningless. I suspect that no county court judge anywhere in the United Kingdom—I apologise to my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fair-bairn); I should say anywhere in England and Wales—

Mr. David Lambie: This is wasting time.

Sir M. Havers: I assure the hon. Gentleman that I am not deliberately wasting time.

Mr. Lambie: You are.

Sir M. Havers: No one in England, or Wales, will understand the subsection. It is totally meaningless.

Mr. Lee: I accept many of the right hon. and learned Gentleman's strictures—in many ways this is a cock-shy—about the clause demanding far too much of courts of summary jurisdiction in England and Wales. I quite accept that this is not the best piece of drafting. I moved the clause in a tentative fashion. I accept much of what the right hon. and learned Gentleman says.

Sir M. Havers: I am grateful to the hon. Gentleman. Certainly he does not accuse me of wasting time.

Mr. Lambie: He is another lawyer. He is used to you wasting time.

Sir M. Havers: If the House is wasting time, it will be time wasted by the hon. Gentleman, who persists in interrupting me. If he wants to interrupt me, let him get on his feet and do so. I give way to him now. I wait for him to intervene.

Mr. Lambie: I shall not waste time.

Sir M. Havers: I notice that his courage disappears when he is invited to intervene. All he does is speak from a sedentary position. I give way to him.

Mr. Lambie: I said that I shall not waste time.

Sir M. Havers: That proves exactly what I was saying. It is so easy to be brave from a sitting position. The hon. Gentleman's courage seems to evaporate when he is invited to intervene. I am prepared to wait.

Mr. Lambie: Sit down and let the Minister speak.

Mr. Deputy Speaker(Mr. Oscar Murton): Order. The hon. Member for Central Ayrshire (Mr. Lambie) must not keep interrupting from a sedentary position.

Mr. Lambie: He is wasting time.

Mr. Deputy Speaker: Order. The right hon. and learned Gentleman has every right to speak, as has any other hon. Member. He was called and he was speaking. If the hon. Gentleman wishes to intervene and the right hon. and learned Gentleman is prepared to Give way, he may intervene. Sir Michael Havers.

Mr. Kilroy-Silk rose—

Sir M. Havers: I give way to the hon. Member for Ormskirk (Mr. Kilroy-Silk).

Mr. Kilroy-Silk: I intervene with the deepest respect to the right hon. and learned Gentleman. I have been listening with great interest to his remarks. I have found his speech delightful. However, he will recall that earlier in the evening he complained that some of my hon. Friends were making speeches and wasting time, although they thought that their remarks were constructive. I do not suggest that he is wasting time—certainly he is not doing so deliberately—but he should know that my hon. Friend the Member for Birmingham, Hands-worth (Mr. Lee) has already admitted that he does not want to press the clause. In those circumstances I cannot understand why the right hon. and learned Gentleman and the hon. and learned Member for Kinross and West Perthshire


(Mr. Fairbairn) are spending so much time on a clause that they regard as totally inadequate.

Sir M. Havers: lf a clause is moved, which one assumes will be considered in places other than this Chamber, it is important that, if one has justifiable criticisms, they should be made. The criticisms should be made here before professors of law at the universities start looking at the matter. The hon. Member for Handsworth is a lawyer of some repute. If these criticisms are not made here, the chance to answer them will be denied. That is why I have spent a little time—not very much, I hope—on this matter.

Mr. Lambie: The right hon. and learned Gentleman is wasting time again.

Sir M. Havers: Yet again a sedentary interruption. I get very tired of interruptions by an hon. Gentleman who has not the courage to get to his feet to make his objections.

Mr. Abse: The comment made by my hon. Friend the Member for Central Ayrshire (Mr. Lambie) is well deserved by the right hon. and learned Member for Wimbledon (Sir M. Havers) in view of his criticism of speeches made by Labour Members earlier. Surely it behoves those of us who are lawyers to apply ourselves to a Bill relating to the criminal law. At the same time, there are many important matters to be dealt with. My hon. Friend the Member for Birmingham, Handsworth Mr. Lee) has indicated that this is a tentative proposal. Therefore, there is no point in the right hon. and learned Gentleman, in this exaggerated tone, assuming that everyone else is at fault if they begin to find his speech somewhat unnecessary, otiose and tiresome.

Sir M. Havers: The hon. Member for Pontypool (Mr Abse), if anyone, makes perhaps the most tedious and boring speeches to which we have had to listen, not only tonight, but on other occasions. He should remember that those who live in glass houses ought to be very cautious. We have listened patiently to otiose speeches by the hon. Gentleman and been bored out of our minds, yet we have not interrupted him.
I have made the various comments that I wanted to make, and I have made them seriously.

Mr. Fairbairn: There is one point that concerns me about this matter, should it be considered in another place. If a prosecutor wished to remove a case from a magistrates' court to a Crown court, he could easily lead a defendant into admitting or claiming that he was a trespasser by putting to him "You were not a trespasser, were you?", or by some other means, and thereby get a change of forum whether the defendant wanted it or not. That would be very much against the interests of the defendant, because he would have no control over the matter.

Sir M. Havers: I am grateful to my hon. and learned Friend for that intervention. That is yet another criticism that can be properly made of this clause.
When a clause resulting from a great deal of careful thought is put before us —it has obviously not been put together in a few minutes—despite the criticisms that have been made, it deserves a serious reply. If my criticism is harsh, I think that I know the hon. Member for Hands-worth well enough to know that he will not resent it. However, it is unfair to say that, because I am dealing with the matter seriously, I am wasting time. I think that the House should reject the clause.

Mrs. Kellett-Bowman: I was extremely interested in the cogent reply given by my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers). However, I think that he emphasised too much the cost to the taxpayer and to the Legal Aid Fund. I think that the most important aspect is that, while all this is going on, the person in the house is possibly delaying major redevelopment. If his house were in the middle of a proposed development area, he could be keeping many people out of new homes. Such an example happened with a development in the middle of Camden when I was vice-chairman of the housing committee. One person in a house in the middle of property that had been boarded up prior to demolition for redevelopment could prevent the bulldozers from moving in and getting the job going. He could prevent hundreds of families from being housed.
It is lamentable that a clause such as this should be put forward. The process could be like a ping-pong match, with the proceedings going from the magisrates' court to the county court and back


again. That could go on for months and during that time costs would mount and, more important more and more people would be deprived of a roof over their heads. It is a good thing that the hon. Member for Birmingham, Handsworth (Mr Lee) is to withdraw the clause, but it was essential for the guidance of the other place that the matter should be fully dealt with here.

1.0 a.m.

Mr. Robert Cooke: My hon. Friend the Member for Lancaster (Mrs. Kellett-Bowman) speaks not as someone from the legal profession but as someone who can draw on personal constituency experience of these human problems.
I have followed the proceedings on this Bill both in Hansard and in the Press. It is high time that an ordinary constituency Member with long experience of the way in which people can mess owners of property about, to the great detriment of society as a whole, said something of his experience in 20 years and more in this House. I can claim all of that.
Throughout those years people who took up residence and moved into houses and took them over had the law on their side. Anything in this Bill which seeks to put the law firmly on the side of the property owner who can then make decent use of that property for decent people to occupy has my support.
I hope that the debate will not be too truncated. I hope that the lawyers will have their field-day and will get the Bill right so that people who break into property, and assume possession of it will not have the law on their side in the future.

Mr. Tim Sainsbury: Like my hon. Friend the Member for Bristol, West (Mr. Cooke) I have the advantage—or, on some occasions the disadvantage—of not being a lawyer. Perhaps those in that profession will therefore accept my apologies if my grasp of the niceties of the wording is less than perfect.
Aspects of this matter command the support of my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers). Experience of my constitu-

ency has shown me that one of the most adverse consequences of the occupation of premises by someone who under Part II would be a trespasser can be the delays in getting premises into a state fit for occupation. The argument advanced from my side of the House about the delay that would result from acceptance of the new clause is particularly relevant.
There was a case in my constituency in which a housing association—and many hon. Members today will have seen the magnificent exhibition of the work of the housing associations—was modernising premises which were originally designed for single-family occupation. The Premises were much too large for one of today's families. During the course of the work part of the premises were occupied by someone who, under Part II would be regarded as a trespasser. The delay resulted in extra costs which fell in part on the housing association and in part on the taxpayer and ratepayer. The presence on premises of a trespasser inevitably leads to delay to any works being carried out to those premises, and any circumstances which tended to increase that delay should be resisted.

Mr. Robert Cooke: The delay might be reduced if the gas, electricity and water authorities complied when the owner of the property asked for supplies to be cut off. My experience has been that all too often, when the owner of a property asks for supplies to be cut off, it is not done and, therefore, that the people occupying the property have been able to carry on for yet more days. I hope that my hon. Friend will address himself to that subject. It may be that he has had experience in Hove which can help us all.

Mr. Deputy Speaker: The Chair must point out that New Clause 18 is concerned solely with court procedure. Speeches are going a little wide of that mark.

Mr. Sainsbury: I am grateful for that indication of the correct area to which we should address our remarks.
It seems to me that the essential point is the nature of the court proceedings, and this clause is concerned with what the nature of the court proceedings should be. I am sure that even those of my hon. Friends who are lawyers will agree that the court proceedings suggested in the


clause are likely to be a great deal more lengthy and time consuming than those which would result from the Bill being enacted without the clause. My argument is that, if we are to make these court proceedings more lengthy, inevitably we shall delay bringing into beneficial occupation all sorts of categories of premises and we shall increase the costs not just to residential occupiers but in some cases to taxpayers and ratepayers.
My hon. Friend the Member for Bristol, West pointed out that the other remedies which have been tried without the benefit of Part II of the Bill, such as trying to get gas, electricity and water supplies turned off, do not work. Therefore, there has been general support for what is proposed in Part II, and in the South Coast area which I represent there has been a great deal of public disquiet and publicity in the local Press and on local radio about the consequences of illegal occupation of premises by persons who would be trespassers under Part II of the Bill.

Mrs. Kellett-Bowman: The fact that most local authorities are allowing people to go into short-life properties wholly cuts away the feet from people who wish to trespass, because they are doubly cheating in that they are not only doing the person who should be there out of the property but also the next person and the next person again on the waiting list. Before local authorities allowed the use of short-life properties, there was much more excuse for trespassing.

Mr. Sainsbury: I agree with my hon. Friend. If it could be shown that generally local authorities were adopting an obstructive attitude to the use of short-life properties, there would be a greater justification for lengthening the court processes which were necessary to establish that a trespass existed and that in consequence the occupier of the premises should be removed.

Mr. Fairbairn: I do not want to cast aspersions on the processes in the law of England, but, as I understand it, if when the magistrates were about to give their verdict the defendant studied their expressions and decided that they were likely to find against him, that would be enough for him to say "I was not a trespasser", and film the matter would have to be remitted to the Crown court.

Mr. Sainsbury: I take my hon and learned Friend's point. The phrase
proceedings shall be adjourned to the county court
would cause consternation in East Sussex.

Mr. Ian Gow: And in Eastbourne.

Mr. Sainsbury: Eastbourne is in East Sussex. In all parts of East Sussex there have been considerable problems, not only with trespassing on premises by persons who have a long-established connection with the area but by—

Mr. Kilroy-Silk: On a point of order, Mr. Deputy Speaker. Is it in order to return constantly to the squatting conditions in East Sussex? It has nothing to do with the clause, which deals with court procedure. May we please stick to the issue?

Mr. Gow: Further to that point of order, Mr. Deputy Speaker. I bitterly resent the hon. Member's reference to the unimportance of East Sussex. It is an area of the greatest importance, not least because all hon. Members who represent East Sussex constituencies are Tories.

Mr. Robert Cooke: Further to that point of order, Mr. Deputy Speaker. There is no doubt that some of those of whom we are speaking make their way to Bristol when they are evicted from East Sussex. I have seen them.

Mr. Deputy Speaker: We must not begin a debate on the geographical complexities of the United Kingdom. We were dealing with subsection (1) of New Clause 18.

Mr. Fairbairn: Further to that point of order, Mr. Deputy Speaker. I am unaware of these matters, but are there not county courts and Crown courts in East Sussex, or is the area outside the law?

Mr. Deputy Speaker: Hon. Members must leave the question of East Sussex, or any other county, out of this.

Mr. Sainsbury: Perhaps I may return to New Clause 18. Before the points of order I was illustrating the case for not lengthening and delaying the court procedure process for dealing with trespassers by drawing attention to a relevant argument. [Interruption.>]

Mr. Fairbairn: On a point of order, Mr. Deputy Speaker. Is it necessary that we should have constant sedentary interruption?

Mr. Deputy Speaker: I shall deal with interruptions.

Mr. Sainsbury: The public disquiet about these offences has been considerable. It is heightened by the feeling in some parts of the country that the offence is committed mainly by people who come from outside that area and who have no established residential, family or employment connection with the area. They sometimes come into the area and occupy property that would otherwise become available in due course for occupation by those living in the area and, in many cases, by those who have lived there all their lives and who have been on the housing waiting list. As a consequence, the opportunity of the property being occupied by a resident of the area is prevented. In the absence of the provisions of Part II of the Bill, it has been prevented for a long time.
1.15 a.m.
Therefore, I entirely support those of my hon. Friends who argue that the new clause would appear to allow a defendant to delay proceedings not only by claiming that he was not a trespasser but even by delaying that claim until the last possible moment in the preliminary proceedings before magistrates. The people who have come into areas such as mine with the clear intention of taking unfair advantage of the availability of premises undergoing conversion are scarcely the sort of people who will hesitate before taking advantage of every opportunity to delay the proceedings which would restore the premises to their lawful owners and allow the improvement of the premises to continue.
We must bear in mind the sort of people who are likely in the vast majority of cases to be subject to proceedings under Part II. If we provide them with additional and unnecessary means of delaying the court proceedings by including the clause in the Bill, the inevitable consequence will be that premises will not be available to those who have had the first and best claim on them for a long time. Costs will then fall on the owners, the ratepayers in practically all cases, and the taxpayers in some cases, because of

the increased amounts to be paid for conversion and improvement and the high costs of court proceedings.

Mr. Robert Cooke: If the person concerned claimed that he was not a trespasser, would he therefore have to meet the rate bill for the property? After all, he has the benefit of possession and is responsible for it during the long delay. Or is the claim not to be a trespasser yet another ploy?

Mr. Deputy Speaker: That matter does not arise under the clause.

Mr. Sainsbury: Among the costs we must consider are those incurred by the Crown in proceedings in Crown courts, much greater costs consequent not only upon delay but upon more formal and expensive proceedings.
I can find in the new clause nothing that commends itself to me as an addition to the Bill, which includes not perfect but greatly improved legislation for dealing with what is recognised in my part of the country as a very serious problem, one that has given rise to a great deal of public disquiet. Therefore, I entirely support those of my hon. Friends who have opposed its inclusion in the Bill.

Mr. Kenneth Clarke: Labour Members have referred to the rather tentative way in which the hon. Member for Birmingham, Handsworth (Mr Lee) moved his new clause. It is taking a tentative approach rather far for the hon. Gentleman to have absented himself from the debate for the greater part of the discussions upon his own new clause. [Interruption.] I gather that the hon. Member for Ormskirk (Mr. Kilroy-Silk) is complaining about the delay that the discussion of the clause is causing to the passage of the Bill. We are entitled to take part in legitimate discussion on the delay in criminal proceedings, in view of what would be the result of the new clause if it were ever enacted.
The clause is part and parcel of the views of the hon. Member for Hands-worth on the laws proposed in the Bill to protect residents against squatters. It is the hon. Gentleman's desire, and, I suspect, the desire of a number of his hon. Friends, to try even at this stage—when a large part of the Bill is designed to introduce new protection for residential


occupiers—to give squatters the opportunity to delay legal proceedings almost interminably, in order to continue what any ordinary person would regard as unlawful and unfair occupation.
The methods of delay which are built into the drafting of New Clause 18 are ingenious and considerable. They show completely the way in which those who support the present practice of squatting in many parts of the country and prepared to try to devise, even at this late stage, a new clause which I regard as providing a barrack-room-lawyer type of defence against any proceedings.
For instance, it says that any proceedings should be initiated in the magistrates' court where defended by the accused person. The first delay in procedure would be in the present protracted state of the lists. It takes a consideable time to get a date before a court, especially when one has to be specially appointed so that in a case where a squatter proposes to challenge, he can, without giving evidence, obtain adjournments for several weeks without a hearing. As the clause stands, it does not specify any stage in the proceedings at which the special question may be raised of whether the defendant decides that he will now admit that he is a trespasser.
What happens after a number of adjournments, once a magistrates' court is convened which appears to have the available time, say a morning, to consider a defence under Part II, and once the magistrates are nearing a close? I do not necessarily accept what one of my hon. Friends said that it could be when they return from having retired to consider their vedict. It could happen when the defendant is giving evidence after the prosecution have closed their case and called all their witnesses and after they have perhaps been cross-examined at great length by the defence to play for time. It would be possible for the defendant, in a passing reference, in his evidence, to raise the defence in subsection 2(a) of this new clause, to claim that he was not a trespasser. As the clause stands, he would not need to substantiate it. It might be the most preposterous claim, in the opinion of the magistrates. It might be apparent to the ordinary opinion of anybody that it is not possible for him to claim he was not a trespasser. Never-

theless, he has only to claim, late, that he was not a trespasser, in a passing reference, and the magistrates are no longer seized of the matter. Once he makes that passing reference, the magistrates take no further proceedings and the question has to be adjourned to the county court for the special question to be determined.
Apart from the special question, a relevant matter which should concern the House more widely is that it takes a long time not only to get contested cases before magistrates, but also to get a case listed in the county court. Before one gets the case listed, someone has to decide which question the court will have to hear argued.

Mr. Robert Cooke: My hon. Friend says that that will take a long time, but some of us are not lawyers, so can he give us any any idea how long it will take to get a case in?

Mr. Clarke: I can. The waiting time for cases, after all the preliminary stages have been completed, is some months before the matter will get a hearing in any of the provincial cities which I know. Given that the defendant has made his claim that he is not a trespasser, somebody has to determine which question the county court will be asked to decide.
The hon. Member for Handsworth was keen to protect squatters from any consequences of criminal acts and in this he has provided another loophole for further argument and for preliminary proceedings on that question.
Subsection (3) of the New Clause 18 reads:
A county court shall have jurisdiction to determine any question as to any matter referred to it under subsection (2) above or as to any matter which is or may become material for determining any such question.
Someone has to decide first what question has been referred to the county court and what matters are or may become material for determining that question. I anticipate that that will require some preliminary hearing, either by the magistrates' court or by the county court, to determine precisely what is the special question that the county court proceedings will have to decide.
There is no procedure laid down in the new clause. I see that under subsection (5) the Lord Chancellor is to be given


the special pleasure of trying to make such rules as he can to enable this procedure to operate. Presumably the magistrates' court, once the defendant has made the casual assertion that he is not a trespasser, will have to formulate a question for the county court to answer.
That is the procedure which is analogous to what the hon. Member for Hands-worth touched on, and to which he objects, whereby matters can be adjourned from the courts of this country to the courts of the Community. If towards the end of the day the defendant suddenly decides to claim that he is a trespasser, the magistrates' court will be lucky if it does not have to adjourn again to a further special proceeding in order to hear submissions as to what question or questions the county court will be asked to determine.

Mr. Adley: Having dealt with subsection (5), is my hon. Friend intending to deal with subsection (6)? If so, will he endeavour to find out from the hon. Member for Birmingham, Handsworth (Mr. Lee)—he is not here at the moment but he may come back—whether the subsection means what it says, and whether the reference to a Lord Commissioner means that the
power vested in the Lord Chancellor by subsection (6) above
can be undertaken by any Government Whip? That is what it says. Perhaps we can have some clarification. I have been unable to ascertain what the clause means.

Mr. Clarke: I think it means a Lord Commissioner of the Treasury. I had to give faithful service in the Whips' Office before I achieved the ultimate dignity of being a Lord Commissioner of the Treasury. The expression "any Whip" is not a fair description at all of this great and distinguished office.
I was not intending to dwell on subsection (6) because it was not my intention to burden the House with my views on the minutiae of the new clause. It is instructive as to the intentions of the hon. Member for Handsworth that, so determined is he to give every opportunity for a squatter on any occasion to delay any criminal proceedings against him, he has actually made provision for what happens when the Great Seal is in commission

and we do not have a Lord Chancellor to exercise his powers. On that occasion, as my hon. Friend has said, a section of the Whips' Office—it has all sorts of extraordinary duties to perform—will be called in to exercise the Lord Chancellor's powers.
The hon. Member for Handsworth, who moved the new clause and left such lacunae of procedure for any criminal squatter to exploit when proceedings are being taken against him, has gone to the most infinite detail to cover every loophole and to ensure that these time-wasting procedures may be open to the squatter at any time.

Mr. Adley: I am sure that my hon. Friend would not want to cast aspersions on Mr. Speaker, who presumably selected the amendment in good faith, but will my hon. Friend tell me what he thinks is meant by the words in subsection (6), "by subsection (6) above"? I have scoured the subsections above and can only get as far as subsection (5).

Mr. Clarke: I am afraid that my hon. Friend has defeated me. The hon. Member for Handsworth is not here. [Hon. Members: "Where is he?"] No doubt he will return at a later stage. No doubt his hon. Friends, who have patiently listened to the debate, will rapidly bring him up to date on the most important points. I suspect that this peculiar wording is an attempt to put further delaying procedures in the hands of someone who otherwise would be a criminal squatter.
1.30 a.m.
The new clause anticipates that the first stage in the magistrates court could go through a fair number of adjournments until a day was set aside for the hearing. Upon the adjournment, no doubt there would be a further hearing to determine what question the county court would be asked.

Mr. Robert Cooke: How many times would a defendant be able to claim illness as a reason for adjournment before the matter reached the county court?

Mr. Clarke: Someone who keeps sending notes to say that he is ill is eventually summoned to attend the magistrates' court. But adjournments are easy to obtain because of the pressure of work. There is a widespread belief that the burden of work in the Crown courts,


especially in London, should be shared with the magistrates' courts—which themselves are often near breakdown.
If a question is eventually formulated to go to the county court, it will go before a court which is already overburdened and which no one can afford unless he has an insurance company or union behind him, is poor enough to qualify for legal aid or is wealthy enough to litigate. Even then, the number of litigations exceeds the court's capacity.

Mr. Robert Cooke: Grants are surely available under the job creation scheme for barristers.

Mr. Clarke: It could be said that barristers get grants from legal aid, but they do not look for such grants to conduct the time-wasting defences permitted under the new clause. It is not just a question of this new form of hearing taking its place in the queue at the county courts. Their lists are so overcrowded that they now have preliminary hearings to get some sort of pleadings, to get an estimate of the time the hearing may take and to compose a list. It is only after that sort of delay, which may be months, that the court will proceed to a hearing.

Sir M. Havers: Would my hon. Friend estimate not only the time which may be needed to complete the pleadings but the delay which would follow them before the case could be heard?

Mr. Clarke: My right hon. and learned Friend does not often go into the county courts. This is one area in which my experience might rival his. Take the most straightforward county court case of an action where someone has been run down, and personal injury has been suffered. If it is proposed to contest the case and to get a judgment of some kind, it will probably take 18 months from the date of the accident. That is assuming that there are efficient solicitors on both sides, acting with considerable expedition.
I do not believe that any county court judge would raise his eyebrows on discovering that the case that he was hearing related to an accident that had occurred two, or even three years before. Part of that time is taken up in the preparation of the case, and of the pleadings and so on, and part is taken up in waiting for the hearing. The latter is a matter of months in almost every centre.

Sir M. Havers: If a man starts out in a magistrates' court, what will happen when he goes to the civil court?

Mr. Clarke: It depends on the time it takes to get to the county court judge who is determining this novel question. I would think that it is most unlikely that anything less than a year would have elapsed, and that applies in any centre in this country. But that is not the end of the day. We are talking about the preliminary question. My right hon. and learned Friend is assuming that the case has been referred by the magistrates' court at an earlier stage. Even then we are only half-way there. The county court will answer the question and determine whether the defendant is a trespasser in so far as the county court can determine it. When that is clear, the case is remitted once more to the magistrates' court. Presumably that means that the magistrates' court will have to be reconvened, and pick up the case where it broke off some months previously. Maybe I am doing the hon. Member for Handsworth an injustice, but it is less of an injustice than it would be if he were here.

Mr. Edward Gardner: Perhaps my hon. Friend would satisfy my curiosity and explain these proceedings. Is it intended that there should be pleadings by both sides?

Mr. Clarke: I think so. I am as baffled as my hon. and learned Friend about the proceedings that are contemplated. Presumably the hon. Member for Hands-worth wants as many lengthy arguments as possible.

Mr. Adley: I am slightly concerned about the flutterings of the Government Deputy Chief Whip. Will my hon. Friend have regard to the interventions of my hon. Friends for Eastbourne (Mr. Gow) and Hove (Mr. Sainsbury) about the particular problems such a clause would bring for their areas, and areas such as my constituency?

Mr. Clarke: I shall pass to the disquiet that would be caused by delay in the courts and I wish to expose the motives of the hon. Member for Handsworth.

Mr. Fairbairn: Would it be necessary for a magistrates' court first to establish that there was a case to answer before it


could go to the county court? If so, in what order would the proceedings occur? If the man in question said "I am not a trespasser", could the magistrates decide whether there was a case to answer in relation to the higher court?

Mr. Clarke: I cannot answer on the detail of the new clause. If the hon. Member for Handsworth were here, no doubt he could answer.

Hon. Members: Where is he?

Mr. Gow: On a point of order, Mr. Deputy Speaker. Since some doubts have been expressed about the intentions of the hon. Member for Birmingham, Hands-worth (Mr. Lee), who introduced the new clause, I wonder whether you have any power to ask the hon. Gentleman to return to the Chamber so that he may assist us.

Mr. Deputy Speaker: I have no such power.

Mr. Clarke: In the absence of the hon. Member for Handsworth, I shall do my best to deal with the point. It seems to me that as subsection (2) of New Clause 18 stands, the point could be taken by the defendant at any stage he chooses in the magistrates' court proceedings. It is my opinion that the whole purpose of this provision is to provide opportunities for delay.

Mr. Clegg: Before my hon. Friend leaves the matter of procedure, could he say who in the county court would be the plaintiff and who the defendant? Would the prosecutor in the magistrates' court be the defendant in the county court?

Mr. Clarke: That is a valid point. I am dealing with the situation in the magistrates' court, and I shall be dealing with the county court's position, and I shall also deal with any point that my hon. Friend the hon. Member for Harborough (Mr. Farr) seeks to raise.
If we have in mind the first magistrates' court proceedings and take the premise which I advanced a little earlier, we see that the whole purpose is to enable an otherwise criminal trespasser to delay matters. The opportunities for protracting the proceedings in the magistrates' court are endless. The magistrates' proceedings could be most protracted, with

the examination of witnesses and all the rest of it. It is not unknown in magistrates' courts for cases to be part heard. If the case is not completed on one day, it goes on to another day. If the case goes on for longer, it may have to be reconvened on a future date because the same clerk may not be able to continue on the following day. The magistrates could adjourn the case for some time.
Submissions could then be made that there is no case to answer. Such subsissions could take a considerable time, despite the pained looks on the face of the clerk of the court and the magistrates. Plenty of time lies ahead, because the defendant could then be called and could give protracted evidence about what seems to him to be relevant, confined as he might be by the clerk of the court.
At any stage—it could be as a passing reference on a last question of the cross-examination after hours of evidence or two days of proceedings—the defendant could claim that he was not a trespasser. At that stage the whole proceedings could go no further. The hon. Member for Handsworth would have provided the machinery whereby the magistrates, in despair, would have to abandon the proceedings, put down their pens and put away their notebooks, and set aside a time to formulate a special question to be decided by the county court to which the case would have to be adjourned.

1.45 a.m.

Mr. Farr: Some time ago I wanted to ask my hon. Friend the Member for Rushcliffe (Mr. Clarke) whether he had heard what was said by the Home Secretary about the previous group of amendments relating to New Clause 17. The point that my hon. Friend is making so well was put to the Home Secretary in that debate and the right hon. Gentleman laid stress in his answer on the fact that a new, streamlined and quicker procedure had been devised and that many of the tiresome delays to which my hon. Friend has referred would be ironed out by the new procedure and the whole process greatly expedited.

Mr. Clarke: I did not have the advantage of hearing the Home Secretary's speech on New Clause 17, but if the right hon. Gentleman talked about the possibility of expediting procedures, that


is well. If my hon. Friend were to catch your eye later, Mr. Deputy Speaker, he might well remind the House of what the Home Secretary said. However, the purpose of the new clause is not to expedite procedures during the first hearings in magistrates' courts.
I now turn to a point that was made by my hon. Friend the Member for Harborough, and that is that I had overlooked the second stage of the procedure and hearings in the county courts. I have talked of the difficulties of the burden of proof and the hearing date. Another problem that will give endless opportunities to those who wish to defend criminal squatters to raise procedural points will be about who should open the case. There will be not only the burden of proving criminal guilt beyond all proper doubt but the burden of proving who should open the case. The matter would have been adjourned by the magistrates for determination in a county court.
Should the prosecution open in the county court? There would be a burden upon the prosecution to prove that the defendant was a trespasser. On the other hand, would the defendant open the case because he would have raised the point about not being a trespasser? Would neither of them open the case because neither would have referred the matter to the county court? The first reference would have been made by the magistrates' court, following the dictates of the amendment of the hon. Member for Handsworth that the question should be referred to the county court for determination. Would the clerk of the magistrates' court, in person or through a representative, begin by opening the case and asking the county court for determination?

Mr. Gow: Before my hon. Friend leaves this point will he address himself to a matter of great importance? Are we talking about the prosecutions of hundreds of people, of thousands, or of hundreds of thousands? When there is a great rush of emigration from Barking. Bethnal Green and Bristol, North-West to such constituencies of my hon. Friends as Christchurch and Hove, how many people will have to be dealt with under the extended procedures? How many such cases will there be when these

refugees arrive from Labour constituencies?

Mr. Clarke: I share the feeling that the problem is extremely widespread and, as I hope that relevant parts of the Bill will deal with that widespread problem, I expect that there will probably be a large number of proceedings. Having this inflicted on the courts could add considerably to the delays.
What will happen if there are several such cases before a court? It may be that delays would be adverse to the interests of the more respectable squatters who want to argue their case and get it dealt with. A case involving, say, six codefendants may have reached a late stage when the last defendant claims that he was not a trespasser.
If the hon. Member for Handsworth were here, he could clarify what was in his mind, but it seems that if just one of the defendants claimed not to be a trespasser, the whole proceedings could be adjourned to a county court for determination of the preliminary question. The other five defendants would have to wait until their fellow accused bad finished messing about there before the case could be resumed.
That brings us to the third stage: the case would go back to the magistrates' court who would have been driven by the new clause to send it away earlier.

Mr. Adley: If the numbers involved are as large as my hon. Friend expects, he may have raised, perhaps unwittingly, a substantial new issue. Will not these numbers require the employment of large numbers of extra civil servants at the Department of Health and Social Security and the Department of Employment or their transfer from other duties to deal with these refugees from Labour-held constituencies? Does this not have some implications for public expenditure and is it in order for an hon. Member to move a new clause that involves such a substantial increase in public expenditure?

Mr. Clarke: I am sure that this has implications for public expenditure. I was concentrating on the inevitable consequences for the administration costs in the courts. I have illustrated how protracted proceedings in magistrates' courts can be rendered abortive by one defendant raising one point that requires an adjournment for several months so that the


county court can determine the question. One of the problems arising from the tremendous backlog of work in the courts is the additional burden on administration costs in trying to sort out court lists and to grease the wheels to get justice done.

Mr. Clegg: When a case in which legal aid has been granted at the magistrates' court is referred to the county court, would a fresh application for legal aid have to be made, especially bearing in mind that one court has criminal and the other civil jurisdiction? What sort of delays could this problem cause?

Mr. Clarke: The legal aid authorities will have to consider whether to grant legal aid for such proceedings. They are novel, and one would expect that a legal aid certificate granted to the defendant in the magistrates' court would not cover related proceedings in the county court. I have not dared to dwell on the cost. What I have described are the protracted proceedings that will be conducted by the prosecution and the defence in the magistrates' court and the county court. The proceedings will be conducted, probably at public expense, in the context of the ludicrous procedural tangles that the hon. Member for Handsworth is trying to create to frustrate the purpose of Clause 2.

Mr. Gow: My hon. Friend has raised a new matter, upon which we might require the presence of a Treasury Minister. This is the question of public expenditure. My hon. Friend will recollect that in the famous letter of 15th December last to the Managing Director of the International Monetary Fund, Dr. Witteveen, the Chancellor of the Exchequer committed himself to a deficit in the current financial year of no more than£8,700 million. Can my hon. Friend say whether the borrowing requirement will be increased above that figure by what is proposed here, and, if so, what the effect will be on the talks going on at Downing Street? Might we have Dr. Witteveen coming here as a refugee and possibly squatting in my constituency?

Mr. Deputy Speaker: Order. I must point out that the hon. Member's questions go rather wide of the clause.

Mr. Gow: With respect, Mr. Deputy Speaker, this is a very serious matter, indeed. The Chancellor of the Exchequer

wrote in the most solemn terms to Dr. Witteveen, the Managing Director of the IMF, committing the Government, during the current financial year, to borrow no more than£8,700 million. My hon. Friend said that there could be an increase in the total costs if the clause proposed by the hon. Member for Handsworth were accepted. This is a very serious matter, and it goes to the heart of the Government's economic strategy. With respect, it is legitimate for my hon. Friend to advance arguments to keep within the guidelines laid down by the Chancellor of the Exchequer. We are trying to help the Government in the matter of public expenditure.

Mr. Clarke: I shall try to keep within the confines of your ruling, Mr. Deputy Speaker. I was not proposing to venture at length into the precise figure—

Mr. Kilroy-Silk: Will the hon. Gentleman give way to allow me to put the record straight?

Mr. Clarke: If the hon. Gentleman will allow me to continue for a moment, I shall give way. I was not proposing to advance a precise figure for what this would cost. I merely argue that the cost could be considerable. The extra administration would be an additional burden on the already overloaded administrative system of the courts.
The hon. Member for Handsworth is quite casual about these issues. He is mindless of the cost that he will create. He is mindless about listening to the debate and about the burdens that will be placed on the courts. The whole matter is proposed casually by him and then he leaves the Chamber, no doubt hoping that others will sort out the tangle that he has left behind.

Mr. Kilroy-Silk: I only wanted to say to the hon. Member for Eastbourne (Mr. Gow) that this is not my clause. I want nothing to do with it. It was put forward by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee).

Mr. Clarke: One almost wishes that it was the hon. Member for Ormskirk (Mr. Kilroy-Silk) who was proposing the clause, because he has been present throughout a good portion of the debate. He has opinions on the matters to which this procedure is directed, and he might give us the benefit of his views in due course.

Mr. Fairbairn: I direct my hon. Friend's attention to subsection (1), which is not concerned with the county court. As I understand the procedure in England, a person cannot be committed to the Crown court unless the full procedures are carried out by the magistrates' court. At any stage the defendant may ensure that the procedure of the magistrates' court is frustrated merely by saying "I am not a trespasser". Am I right in understanding that a person may avoid trial by saying that at any point so that he cannot properly be committed to the Crown court? The subsection provides that it is for the Crown court to try the defendant, yet it cannot do so if the magistrates' court procedure may be frustrated by the claim that he is not a trespasser.

2.0 a.m.

Mr. Clarke: So far in my contribution to the debate I have tried to deal with subsection (2)—this business of summary trial in the magistrates, referral to the county court, adjournment and then, presumably, referral back to the magistrates' court for final determination, but I find subsection (1) as baffling as does my hon. and learned Friend. Again, it seems that if in the proceedings under Part II of the measure the defendant claimed that he was not a trespasser, the trial would have to be committed.
That seems to contemplate the possibility of the trial being committed to the Crown court without the ordinary committal proceedings being undertaken. With respect to my hon. and learned Friend, I do not think that the subsection means that the defendant could avoid a trial ever taking place. I take it to mean—although I accept that it is ambiguous and arguable and that the purpose of the clause is seemingly to give people the opportunity of arguing procedural points at great length, which no doubt they would—that the defendant could not be committed to the Crown court without the usual provisions being made for depositions, for example, and the other preparatory work that normally takes place at the magistrates' court before committal.
If the defendant says before the court at some stage that he is not a trespasser, he is committed to the Crown court in the unusual position, as is everybody else

taking part in the proceedings, of having no depositions from the witnesses. That would be an undesirable procedure. As I have said, the procedure under the summary proceedings under subsection (2) would be undesirable, lengthy, and costly. It is important to realise just how lengthy and costly it could be.
Before I gave way to some interesting interventions I had reached the stage of dealing with the first procedure at the magistrates' court, the stage at which the matter is adjourned to the county court. The way in which the county court would prepare itself to deal with the special question referred to it and the way in which it would adjudicate upon the special question is of some interest, the county court being seized of only one special question as a result of the proceedings being adjourned from the magistrates' court. Presumably the issue would be returned to the magistrates' court after the proceedings had taken place at the county court.

Mr. Robert Cooke: Before my hon. Friend reaches the next stage in the proceedings, perhaps he will consider the position of the owner of the property that has been trespassed upon. Surely the owner will lose patience during these proceedings. That is more than likely. It is likely that the owner will take to strong-arm tactics to get rid of the trespassers. The clause will positively incite violence. No reasonable person, not even a dear old lady, would put up with this procedure. There would be bands of people throughout the country offering themselves to do the job that the courts could not do—to get the trespassers out of properties. I hope that my hon. Friend will address himself to that before he goes on to describe the circuitous court process.

Mr. Clarke: I agree entirely with my hon. Friend. In dealing with Part II of the House should have in mind the necessity to deal with the process that faces residential owners who have squatters in property to which they, the owners, are lawfully entitled. They know that the criminal law does not give them protection. The process that I have described would frustrate the performance of Part II and intensify frustration generally. Public order would be at risk. Personal misery would be suffered by would-be


occupiers of property who were kept out of their own homes.
The frustration of the months of waiting for the first magistrates' court procedure to take place, for the county court to adjudicate and then for the reference back to the magistrates' court would not be the end of the matter. Upon the county court having determined the answer to the special question referred to it, the case would have to be sent back to the magistrates' court and there would be the process of trying to find time, in a crowded magistrates' court list, for the adjourned proceedings to be resumed and brought to a useful conclusion.

Mr. Graham Page: I have been waiting patiently for my hon. Friend to get to the third stage. What happens if one of the original magistrates has died in the meantime? Does it have to start all over again?

Mr. Clarke: I am grateful to my right hon. Friend the Member for Crosby (Mr. Page) for that intervention. I am sure that the process would have to start all over again. In a not insignificant number of cases, given the preliminary steps that I have described in the procedures set out by the hon. Member for Handsworth, it is possible that a number of members of the magistracy would have died before the cases came back to the magistrates' court.
That raises the question of which magistrates should deal with the third stage when the case comes back from the county court, the special question having been answered. These are adjourned proceedings. It is possible that the case will go back into the ordinary list in the magistrates' court. It may be that, because of the time that it has taken, it takes its chance in the list and comes before a fresh bench of magistrates. But I do not think so. That is not how I interpret adjourned proceedings. My right hon. Friend the Member for Crosby shakes his head. I am sure that he agrees that, as these are adjourned proceedings, they will come back before the original magistrates' court, which is still seized of the matter and has to complete the process that it began many months before.
The hon. Member for Handsworth has provided many remarkable opportunities

for delay. This procedure will give rise to many problems.
In addition to the problems that I have described of getting the case into the magistrates' court list at all, it is especially difficult with an adjourned hearing because the people engaged in the first part of the case have to be reassembled. It must be precisely the same bench of magistrates. Of course, magistrates do not sit on the same bench each day. They sit in different combinations of magistrates. The original magistrates will have to be disengaged from any other sittings and brought back together again. Presumably, and preferably, the same clerk who sat with the original magistrates will be required to continue with the complex proceedings. A date must be found that is convenient for the advocates who took part in the first magistrates' court proceedings and the county court interim proceedings to attend the magistrates' court to resume the hearing.
These are not inconsiderable problems. I am sure that my right hon. and hon. and learned Friends know that any case in a magistrates' court that is adjourned part heard is adjourned not, as in the Crown court or the High Court, automatically to the following day, but to a future date that may give rise to difficulties and complexities of reassembling the legal and lay personnel involved in the first proceedings. Again, the hon. Member for Handsworth has created a timing problem that will enable criminal squatters to protract the proceedings still further.
The difficulties involved in coming to any adjudication in such circumstances are staggering. These are adjourned proceedings. I have already described how they might be adjourned because a defendant, after the whole of the prosecution case and after he has given evidence in reply to the last question in cross-examination claimed to be a trespasser.
How can there be a proper adjudication when the magistrates' court has to try to come to a conclusion on the case in the light of whatever further evidence may be called by the defence? Again, we are contemplating a defendant who is trying to delay, so he will no doubt use the intervening months to assemble more evidence to call before the magistrates.
The magistrates, having heard that further evidence, have to retire and seek to come to a conclusion, doing their best to recollect the evidence that they heard months before when the case first came before them. In any proceedings, the delay between the events and the giving of evidence on them is one of the principal problems for witnesses. If to that delay is added a huge adjournment before more evidence and adjudication are given, that lapse of time serves only to heighten problems for the magistrates and the witnesses. I could not think of a more unsatisfactory way of deciding guilt or innocence than if defendants were to take the opportunities that the clause would give them for creating interminable delay.

Mr. Edward Gardner: Under the new clause there would have to be a change from criminal to civil jurisdiction and a similar change in procedure. In addition, there would be a change in the burden of proof. Will my hon. Friend consider what will happen where a defendant instructs a solicitor who specialises in the criminal courts and then has to instruct someone who is experienced before the county court? Would that mean a change of solicitor and counsel, with the inevitable delay that that would entail?

Mr. Clarke: It almost certainly would. Only a limited number of advocates combine magistrates' court and county court advocacy. Many magistrates' court solicitors never see inside the county court from one year to the next, and the converse is true. I see my right hon. Friend the Member for Crosby shaking his head, but I suggest to him that few solicitors used to handling undefended divorces in the county court find themselves before a magistrates' court representing a client accused of a criminal offence, let alone an offence under Part II.
There is also the question of the burden of proof. The clause fails to make it clear whether, if the question is referred to the county court, the court will have to determine the question by applying the civil or criminal burden of proof. If the former, is the magistrates' court bound by that, or does it have to determine whether the county court finding should be regarded merely as a prelimin-

ary finding? On the second occasion, should not the magistrates' court, before determining the verdict, still hear whatever evidence there was of whether the defendant was a trespasser. Procedural delays could be intolerable. The first magistrates' court hearing, the intermediate county court hearing and the final magistrates' court hearing would be so lengthy that any proceedings under Part II could last for more than 12 months.
2.15 a.m.
The new clause is clearly an attempt to frustrate the purposes of Part II by the methods which are best loved by many of the more professional squatters—those of the barrack room lawyer trying to exploit the procedures of the ordinary courts, trying to exploit delay and trying to stop the protection of the courts being given to the victims of their squatting.
The range of offences to which Part II and, therefore, the new clause applies are of a kind where it would be unthinkable for any such delay to take place, and it is clear when one considers who are the likely victims that they are people who would be deterred from taking advantage of the remedy of Part II if these protections were given to any defendant by the hon. Member for Handsworth.
Clause 7 of the Bill is the offence of adverse occupation of residental premises. Any person on premises as a trespasser is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of the displaced residential occupier of the premises. That is meant to give a quick and easy prospect of relief to a displaced residential occupier who finds that some squatter has occupied his premises. If he requires a trespasser to leave and he does not, that trespasser may be guilty of a criminal offence. Of what purpose is that if a displaced residential occupier who wants to take advantage of it is warned that he need not think, just by requiring the person inside to leave, that necessarily criminal proceedings will take place? A displaced residential occupier would need to take legal advice about whether there was likely to be any success in a court of law in the foreseeable future in establishing that the person he was about to require to leave was actually a trespasser for the purpose of this provision.

Mr. Mayhew: Does not my hon. Friend think that there is another equally unsatisfactory feature about the new clause in that it slightingly implies that magistrates are not capable of determining whether the person concerned is a trespasser? The purpose of the clause seems to be to take that away from them. It goes to the Crown court or to the county court. Surely a magistrates' court is well capable of investigating a matter of that nature. Is it not dangerous to add to any movement that there may be to derogate from the capacity of magistrates in this respect?

Mr. Clarke: I quite agree. The whole proposition is based on a most disparaging view of the capacity of magistrates to determine who is a trespasser.
Of course, magistrates can get these matters wrong, but so can county courts, and a matter upon which I have not dwelt is the right of appeal if they do. Presumably this will be an unusual offence in that one's right of appeal will lie with different courts during different stages of the proceedings. An appeal will go to the divisional court from the magistrates' court on a question of law, to the Court of Appeal on a question of fact, and to the Court of Appeal from the county court on the adjudication on trespass. I have confined myself to all the procedural problems of going through the courts of first instance at these various stages, but clearly the right of appeal of any accused person lies under Part II of the Criminal Law Bill as it does under any section of the criminal law, and the delay that could be incurred by appealing from any decision of the county court would be very considerable.
Clause 7 would place a displaced residential occupier in the position of having to take legal advice about whether someone was a trespasser before he went any further. Clause 8 involves trespass with a weapon of offence. The purpose of that could be frustrated, because it would be necessary to determine whether the person who entered premises, having with him without lawful or reasonable excuse any weapon of offence, was a trespasser. If he chose to challenge whether he was a trespasser, the whole purpose of the protection of Clause 8 would be defeated.
I have dwelt on the delays in procedure which this new clause would cause. I do

not apologise for having done so. If I have taken a little time, I have inflicted upon the hon. Member for Handsworth the kind of delay that he is proposing to inflict upon the victims of squatting. He is ensuring that they do not get the legal remedies that we believe are overdue.
I have dealt with the problems posed for the courts, administration and lawyers. But they are not uppermost in my mind. I am worried about the problems for those unfortunate people who return from holiday to find that someone unauthorised has occupied their property. I am concerned for those who might vacate their premises in order to carry out repairs and who find that squatters have moved in. There are many other distressing cases.
The lack of a criminal remedy against squatting causes grave social problems in London. The problems are not so great in my constituency, but the possibility of their spreading has given rise to fear. I have received many letters from people expressing fear about what could happen if they left their homes. Clearly, new criminal remedies are necessary.
The new clause is a serious, underhand, roundabout way of trying to frustrate the purposes of Part II by giving a field day to the worst type of lawyers at the expense of those who are deprived of their homes.

Mr. Gow: The Government recognise that the law relating to trespass is in urgent need of reform and yet the new clause seeks to frustrate the Government's purposes. It is nothing new to observe that hon. Members below the Gangway are anxious to frustrate the objectives of their Government. But in seeking to frustrate the purposes of the Government, it is remarkable that the hon. Member for Birmingham, Hands-worth (Mr. Lee) who is not in his place, is seeking to extend and prolong the process of the law. The hon. Member for Handsworth is a barrister. Nobody who has heard him address the House could accuse him of being particularly sympathetic towards the legal profession.
One of the extraordinarily mischievous consequences of New Clause 18 would be to put more money into the hands of lawyers. If ever there was a cause which should not be dear to hon. Members below the Gangway it is to put more


money into the pockets of the lawyers. But that is what the new clause would do.
My hon. and learned Friends know that the fees that a re marked upon their briefs in the Crown court tend to be larger than the fees that are marked upon their briefs when they appear in the magistrates' courts or county courts. An astonishing side effect of the new clause would be a prolongation of the legal processes and an increase in the fees marked upon the briefs of my hon. and learned Friends.
That is not the only mischief of New Clause 18. One of the principles of English justice is that it should be as speedy as possible—that we should bring to trial and to either conviction or acquittal as soon as we can those against whom a charge is preferred. Yet violence is to be done to that principle. I cannot believe that the hon.. Member for Hands-worth, with his long experience at the Bar, could intend to incorporate into the Bill a new legal procedure that makes the administration of justice more prolonged, more protracted and more costly.
A third piece of violence to the Government's declared policy is the cost to public funds. The clause would not only pour additional money into the pockets of lawyers, whom Labour hon. Members below the Gangway profess to despise, but would add to public expenditure. I am mindful of your rebuke to me a few minutes ago, Mr. Deputy Speaker, but I think that it is legitimate to inquire what would be the additional cost to public funds if we were to extend the defendant's rights to go out of the magistrates' court, out of the county court and into the Crown Court.
We are entitled to consider how many people will take advantage of the new procedures in the clause each year. Some of my hon. and learned Friends who practise in the magistrates' court, the county court and the Crown court will be able to give the House an estimate of the increased cost of moving from the magistrates' court to the county court and from the county court to the Crown court. We need such an estimate before we can decide on the merits or otherwise of the new clause.
I remind the House of the clear and unambiguous terms in which the Chancellor of the Exchequer laid down the public sector borrowing requirement

target for the current year on 15th December, when he said:
The latest forecast prepared before the measures showed a PSBR of£10½billion in 1977–78 and£11½billion in 1978–79. These forecasts embodied unrealistically favourable assumptions on several important points. Even so, the PSBR figures were unacceptably high
—I underline those words—
and the immediate objective of the measures which I am announcing this afternoon is to reduce the public sector borrowing requirement to about£8·7 billion in 1977–78."—[Official Report, 15th December 1976; Vol. 922; c. 1525.]
We must bear in mind what happened last month, when Labour Members who sit below the Gangway increased this year's public sector borrowing requirement by an amendment to the Finance Bill in Committee upstairs which meant a reduction in income tax. That increase amounted to£450 million. Since that has happened we must look even more closely at the financial effects of the clause.
At this very moment, for all we know, there is a gathering at No. 10, Downing Street. There is a gathering taking place round that famous table with the leaders of the TUC who will be anxious, in the pay negotiations, not to increase the public sector borrowing requirement. At least, we assume that. How would it be if the House of Commons, at the moment when the negotiations are talking place, were to include in this Bill a provision which involves an increase in public expenditure? We have therefore to take that factor very much into account.
2.30 a.m.
Those are some of the great principles involved in New Clause 18. Now we can turn from the principle to some of the details. My hon. Friend the Member for Rushcliffe drew the attention of the House to some astonishing features of this new clause. I take them in reverse order and will start with subsection (6). Here we find astonishing proposals from a lawyer from below the Gangway. He wishes to give extra power and privilege to a Lord Commissioner of the Treasury, the very man—or even to the hon. Lady the Member for Bolton, West (Mrs. Taylor)—now on the Government Front Bench. I am not sure whether the hon. Lady is a Lord Commissioner or a Lady Commissioner. The proposal that we should give special power to a


Lord Commissioner of the Treasury is quite beyond my comprehension.
It would be right at this stage to allow some of my hon. Friends to deal with other aspects of New Clause 18. There are five other subsections which have to be considered in greater detail when the matter is next considered.

Question put and negatived.

New Clause 19

SOLICITATION BY A MAN

In the third column of the Second Schedule to the Sexual Offiences Act 1956, in relation to solicitation by a man (section thirty-two), for "years" there shall be substituted "three months", and for "six months" there shall be substituted "three months."—[Mr. Abse.]

Brought up, and read the First time.

Mr. Abse: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it is proposed to take new Clause 20—Imprisonment for Soliciting—and Government Amendment No. 150.

Mr. Abse: I shall seek to put this as succinctly as I can. I owe an apology, first, to the hon. Member for Rushcliffe (Mr. Clarke) whom I accused of delaying matters. I did not appreciate that he was not his usual bumbling self but was filibustering. I shall not follow his example.
I wish to put to the House that there is a need for this clause which is to reduce the maximum penalty for importuning from the two years at present provided to three months. It will be recalled that during Standing Committee, the Government accepted an amendment to reinstate the right to trial by jury for this offence. In doing so, the Committee, while trying hard to reach a conclusion which they felt protected the liberty of the subject by insisting on trial by jury, restored, I suspect inadvertently, the previous maximum penalty of two years' imprisonment, so that the present position in the Bill is that two years is the maximum penalty but there is a right to trial by jury. The clause seeks to restore the reduced maximum of three months while retaining the right to trial by jury.
It should not be necessary for me to seek to persuade the Minister of State of the need for this to be done, for in eloquent terms the Minister of State in the House of Lords stated the case for the reduction of this penalty. Lord Harris said that in the view of the Government—I trust that it is still their view—
the high penalties are not justified either when compared with the penalties for the existing offence of soliciting by female prostitutes…or in the light of present-day attitudes of society towards homosexuality".[official Report House of Lords, 14th March 1977; Vol. 380, c. 1360.)
The Home Office working party on vagrancy and street offences, having gone into the matter, specifically recommended that the maximum penalty for importuning should be reduced to three months. That view was adopted by the James Committee and has since been adopted by the Government.
The Committee also gave its attention to the right of a man charged with importuning to be able to go for trial by jury. An individual might feel particularly hard-pressed by the idea that he should be so charged and might want his right of trial by jury, but it would seem quite wrong and harsh that, because the overwhelming majority of people charged with the offence are content to have the case decided in the magistrates' court, there should fall upon them the possibility of having a two-year sentence.
If the preoccupied Minister of State could spare me a few minutes, I will put to him the straightforward question which one is bound to ask. Having accepted the view of the working party on vagrancy and street offences, having accepted the recommendation of the James Committee, and having explicitly stated through the Minister of State in the House of Lords that it was desirable that the penalty should be reduced, why is it that the penalty of three months is not now in the Bill?
It should not be necessary, surely, to point out, as was pointed out years ago in the Wolfenden Report, that
For the most part those convicted of importuning are in no sense male prostitutes: they are simply homosexuals seeking a partner for subsequent homosexual behaviour.
In other words, the Wolfenden Committee found that male importuners, unlike most prostitutes, were not necessarily out for financial gain, and that,


even in those case involving an element of prostitution, the sanction of imprisonment is surely pointless and runs counter to the statements of successive Home Secretaries that imprisonment should be reserved for those for whom imprisonment is really necessary. How can imprisonment for importuning be justified on that criterion?
I am sure that all hon. Members have at some time in their lives been solicited by a prostitute. This may be a little vexatious and be dismissed, but we are not all excessively concerned about such an incident. It has never fallen to me to be solicited or importuned by a man in this country, but if it occurred I am quite sure that it is not the sort of behaviour—even if found to be momentarily vexatious—that should attract a penalty of two years. That is a pointless sentence. To lock up in all-male prisons men convicted of homosexual soliciting is surely like punishing a male heterosexual kerb-crawler by confining him to a harem. The value of imprisonment in such cases is, to say the least, doubtful.
Surely it would be much wiser to turn our eyes away from heavy sentences of this kind and to concentrate rather on the lines recommended by the Department of Health and Social Security's working group on homeless young people, which was set up following the Yorkshire Television documentary "Johnny Go Home". Instead of two-year sentences, we need youth advisory centres, more training and advice for unskilled young people and an adjustment of priorities, within expenditure limitations, to accommodate all young people at risk. Such a constructive preventative approach would be far more beneficial than the futile and negative imposition of prison sentences. It is absurd to put such people in prison: it does not benefit them, it disturbs other prisoners and creates more work for already overburdened staff.
New Clause 20 would abolish imprisonment for soliciting. I do not share the enthusiasm for the Wolfenden Report as a progressive document. The Act based on its recommendations about street prostitution has driven women off the streets and into the hands of souteneurs, shady landlords, night club owners with criminal records, doubtful hoteliers and miserable taxi drivers and porters. The whole procedure has bean institu-

tionalised, apart from a miserable remnant still on the streets. The squeamish public have had their way, the women have fallen into the hands of parasites and a whole apparatus has been erected to provide these services, especially for tourists.
Those being sent to prison are not the successful prostitutes but almost always the miserable remnant still on the streets. The survey of Holloway Prison by Professor Gibbons of the Institute of Psychiatry found that 15 per cent. of prostitutes had a history of mental breakdown, 25 per cent. of attempted suicide, 25 per cent. of alcoholism, 25 per cent. of addiction to other drugs and 25 per cent. of a variety of other physical diseases, many of which antedated their prostitution.
2.45 a.m.
Prison has no rehabilitative value for these prostitutes. The Home Office working party on the Street Offences Act said that it did not consider that prison had a rehabilitative value sufficient to warrant making it available to these people. What other argument can be advanced for this futile exercise of keeping these women in prison at a cost of£80 a week to the taxpayer? No governor of Holloway has ever thought it desirable or helpful.
The only other argument that I have heard is that the threat of imprisonment can make the offender more willing to accept probation. The Home Office working party commented that it did not think that imprisonment was necessary to motivate prostitutes to accept probation, nor did it think that any prostitute would be prepared to accept it simply to avoid imprisonment. Therefore, probation officers do not agree with that argument.
I know that there are hon. Members who, unlike me, believe in the Street Offences Act. Without going into the history of it, I should point out that it would be quite wrong to suppose that if we stopped imprisoning them there would be any question of successful prostitutes returning to the streets. Unfortunately, the successful prostitute is well integrated into the institution that has resulted from the Street Offences Act. Some say that the price is worth it in order to clear the streets. I am not arguing for or against that. I am simply pointing out that in


view of their set-up there is no likelihood of successful prostitutes returning to the streets to ply their trade.
The most miserable and wretched prostitutes are on the streets, and it does not become us, at a time when our prisons are overcrowded, and our prison officers over-burdened to dump these people on them. The prison officers resent it deeply. Something should be done by supportive work outside in hostels and by social work. It is a stupid, miserable exercise to send these prostitutes to prison, and it cannot be justified.
I appeal to the Minister of State to return to what was said by the Minister of State in another place—that the imprisonment of men should be for three months only, and that women should not be imprisoned at all. We should show that we are a civilised society and that we recognise that these wretched creatures are inadequates who lack intactness. Surely there is another response.

Sir David Renton: I want to speak mainly about New Clause 20, but I shall comment on New Clause 19 in passing.
The hon. Member for Pontypool (Mr. Abse) obviously has given a great deal of thought to this matter, but perhaps he has overlooked the fact that the maximum sentence that the courts can award is intended to cover only the worst cases. It is not necessarily intended to be the usual or typical kind of sentence.
In the case of male importuning, I think that unfortunately we have to contemplate, the possibility that there are obnoxious and vicious adult men who will persistently importune teenage boys. As a last resort prison may be necessary to deal with such cases. I do not say that imprisonment for a period as long as two years would be necessary, and indeed the present situation would be worsened if there were many people of that sort who were put in prison for a long time, but I feel that we must keep imprisonment as a sanction. I have an open mind about the maximum length of sentence, but we should think carefully before we change our law on that score.
In regard to New Clause 20, I would point out that 22 years ago I had the somewhat unhappy responsibility of pilot-

ing the Street Offences Bill through its Committee stage, and indeed I had to deal with all its stages before it went on the statute book. I thought that the hon. Member for Pontypool was somewhat inconsistent when he appeared to praise the Wolfenden Report as a great social document and then, in the next breath, condemned the Street Offences Act—an Act which to a great extent was based on the Wolfenden recommendations.

Mr. Abse: The right hon. and learned Gentleman must have misheard me. I said that that document was not as progressive a document as was popularly believed. I did not make the point that he attributed to me. I was seeking to show that there were aspects of Wolfenden as translated into the Street Offences Act that were far removed from being progressive recommendations.

Sir D. Renton: I must have misheard the hon. Gentleman. I thought I heard him say that he praised that report in most respects. However, I accept what he has now said. But I must beg to differ from him. The Street Offences Act was a successful exercise since it got the women off the streets of our cities without filling the prisons.
Based on the Wolfenden recommendations, it had a careful structure. It was intended to deal with women as individuals stage by stage as the situation required. The first stage was undoubtedly one which would commend itself to the hon. Gentleman because it consisted of mere cautioning and putting the girl or woman in touch with a welfare officer on the first occasion on which she was identified by the police as soliciting on the streets as a common prostitute. There is no doubt that in a proportion of cases the art of redemption was successfully practised at the earliest stage on the first occasion.
If that and counselling failed, the girl had to be brought before the court. On the first occasion she was given a modest fine, and the maximum fine laid down in the legislation was£10. On subsequent occasions, if the girls persisted, she could be fined£25. As far as I know those limits have not been increased as a result of inflation—although they might properly be increased, bearing in mind the enormous incomes that—according to


what we read in some newspapers—these women make.
The hon. Member for Pontypool is now suggesting that the ultimate sanction of prison should be removed. The Act has stood the test of time well and the careful adjustment of stages for dealing with the problem has proved to be effective and not too harst. There is no question that many of these girls go to prison. In view of the success that the Act has had, not only in getting the girls off the street but in reducing the numbers of them entering that sort of traffic, it would be a mistake to disturb matters now.
I doubt whether this could be proved statistically but my hunch is that the permissive society, which did not exist in 1959 when the Street Offences Act was passed to the extent it does now, has caused the demand for prostitution to fall considerably. I doubt whether it is now the great social problem that it then was. With respect to tine hon. Member for Pontypool, I doubt whether prostitution is much tinged with the particular aspects that the hon. Member for Pontypool deplored—and that we should all deplore if they existed. We should leave well alone in this matter. I therefore hope that the Government will resist the new clause.
I want to make a point about Government Amendment No. 150. In a Bill that deals mainly with England and Wales we are seeking to amend a purely Scottish Act—Sexual Offences (Scotland) Act—and that is the sort of thing that we should not do. The Committee on the Preparation of Legislation made a strong recommendation that we should not tag Scottish provisions on to Bills based on English law, whether criminal law or any other. The Government are quite right to move the amendment because it pro tanto reduces the amount of interference there will be with Scottish law. However, I was surprised to find in the schedules a series of amendments to Scottish law. I hope that the Government will take note of what I have said about the undesirability of the practice.

Mr. Kilroy-Silk: I was surprised to hear the right hon. and learned Member for Huntingdonshire (Sir D. Renton) say that the permissive society has led to there being fewer professional prostitutes. I have not noticed so many enthusiastic

amateurs taking their place. There may be fewer women on the streets and fewer prosecutions, but there has been a great growth in massage parlours and escort agencies, some of which, I suppose, are respectable. I have no direct knowledge, but many of them are frequently alleged to be covers for prostitution. Perhaps the hon. and learned Gentleman has been misled by the growth of the so-called permissive society into believing that prostitution as an occupation had disappeared. It has not. It has gone to other quarters.

3.0 a.m.

Sir David Renton: I make no complaint of the fact that the hon. Gentleman was not here 22 years ago, but I can assure him that, on the advice of the Home Office at that time, we knew of all sorts of undercover organisations as well as of the women on the streets.

Mr. Kilroy-Silk: Of course, there always have been such organisations and there always will be while prostitution remains illegal. There was a similar situation with prohibition in the United States.
I support the new clauses. It seems wholly inappropriate to punish with imprisonment a male homosexual or a prostitute for soliciting. Both are likely to be among the more socially inadequate and sad cases. Neither would appear susceptible to the alleged deterrent effect of prison and both would benefit more from a more welfare oriented scheme than from the harsh and, in terms of what it achieves, pointless punishment of imprisonment.
Most prostitutes in prison have some defect, whether mental, physical or social and whether involving drug dependency, alcoholism or any other factor that contributes to their general inadequacy. They are certainly not the successful prostitutes. I should have thought that the right hon. and learned Member for Huntingdonshire would take that point. We are catching the male homosexuals and female prostitutes who are not successful. The people with more discreet access to what they want, the high-class call girls and those using the massage parlours and escort agencies, are not caught except when there are occasional and well-publicised raids on such premises. It is the least successful, the least adroit


and the least articulate who are caught and punished.
It is clear that prison is not a deterrent to soliciting in public. That is indicated by the fact that the prostitutes in Holloway Prison are the same women on a continual merry-go-round of in prison one week, out the next and back in prison the week after. This should raise doubts about the efficacy of the whole notion of the deterrent and rehabilitative functions that are alleged to be among the purposes of prison. Prison has no rehabilitative value for prostitutes. Even the Home Office Working Party on Vagrancy and Street Offences that, I admit, recommended the retention of imprisonment, said in its 1974 report:
We do not consider that any rehabilitative value it might have is a sufficient reason for making it available. It is usually the least successful prostitutes who get sent to prison—a prostitute who becomes successfully established is less likely to have to ply her trade in the streets—and their problems are so great that it is difficult to do anything to help them in a short period in prison.…The prison service does not see itself as having a useful rehabilitative role to play.
So what is the point of having imprisonment as a punishment for this offence? As it clearly does not deter, what is society doing by imprisoning people that we all regard as socially inadequate and certainly not successful?

Mr. Hooley: There seems to be a fallacy in my hon. Friend's definition. By definition, if there is any deterrent effect, those who are deterred do not get into prison at all. Therefore, my hon. Friend is missing a whole category of people who might be deterred by the existence of punishment. Because punishment exists they do not drift into the recidivist category to which my hon. Friend is referring, and which I do not dispute.

Mr. Kilroy-Silk: That applies to the whole area of crime and punishment, but it is intangible. That is one of the arguments in favour of the potential deterrent effect of a number of things. We do not know the figures for those who have been deterred from committing an offence because of the possibility of punishment. We do, however, know that those who come into the net of our statistics—and in this context we are talking about those prostitutes who are

regularly sent to Holloway—are not deterred. There might be others, but we do not know. No one can produce proof of the number of people who are deterred from committing offences because of the existence of penalties. We know that those who are recidivists in this category of prostitutes and male homosexuals who solicit are not deterred.
I believe that in dealing with both male and female soliciting much more emphasis must be placed in the future than has been the case in the past on helping younger boys and girls who are at risk, where soliciting might be the result of difficulties in coping with other problems. Various voluntary organisations have pioneered informed counselling services for young people at risk. In London, important preventive work is being undertaken by voluntary organisations, such as the Soho Project which seeks to work with young people newly arrived in the city, to ensure that they do not meet the temptations and dangers that might lead them into the kind of life, and therefore the offences, that we are considering here.
What is required is a much more vigorous and speedy development of the kind of services recommended by the DHSS working party on homeless young people. That working party, which was set up following the revelations of the Yorkshire Television documentary "Johnny Go Home", recommended the development of short-term hostels and longer-term accommodation for both boys and girls entering the capital, often from broken homes, often at risk, and susceptible to all kinds of temptations and dangers.
The working party also recommended that information services should be set up, and that there should be youth advisory centres, increased employment training and advice for young people. A clear adjustment of priorities was recommended within the present limitations on public expenditure to accommodate the problems and requirements of young potential offenders.
Unfortunately, little has been done to implement the recommendations of that working party, either by the DHSS or by the Home Office. We are waiting for the information booth to be established at Euston station. This was tentatively


promised by the Home Secretary to myself and many other deputations from the Campaign for the Homeless and Rootless.
If we are serious about tackling this problem, it is far more sensible, and in the end far more successful, to deal with the causes rather than, as we are now doing, very often too late, with the symptoms. If we took more preventive measures to try to eradicate the causes of the diseases that we are discussing. it would not be necessary for my hon. Friend the Member for Pontypool (Mr. Abse) and I, and others like us, constantly to call for tte ending of imprisonment for such offences. If we still had to imprison people, perhaps there would be fewer of them. Certainly we should have a far more efficient way of trying to deal with what I think we all agree are not necessarily evil individuals, although some of them may be. In the main they are sad and rejected members of society who need help rather than punishment. For that reason alone I support the new clauses.

Sir M. Havers: I shall take as little time as I can, and certainly not 15 minutes—as was taken by the hon. Member for Pontypool (Mr. Abse). I think that the issue may be dealt with much more shortly.
Why do we have sentences of imprisonment for either of these offences? The answer must be that imprisonment is considered to be a deterrent. If that be accepted, what is the evidence that there has been any abuse? I have not heard one case cited or read of one case in which unfair use of the maximum sentence has been made by a judge. As has been said, there must be an ultimate sanction for someone who persists in breaking the criminal law, especially when, as in the first instance, the corruption of teenagers is involved, or, as in the second instance, offensive conduct is involved that is repugnant to those who pass about the streets of London.
There have been occasions—I expect many hon. Members have experienced it—when a man is walking down a street with his wife or another female companion and prostitutes behave in a way that creates the greatest possible offence to both the man and his companion.

Miss Joan Lestor: I accept what the right hon. and learned Gentleman says about offence, but why has no one mentioned the offence that can be caused to women by men who engage in kerb crawling, or inviting women to take part in prostitution? That activity takes place in many parts of London, and it seems that such men are never arrested or in trouble.

Sir M. Havers: The answer is that that activity has nothing to do with the clauses or amendment to which I was trying to devote my attention.
The behaviour that I was describing can be extremely offensive. There may be occasions when such conduct is persistent for various reasons. It may be that the person is deprived or of limited intellect, but we must have regard to those who are the victims of such conduct.
If there had been abundant evidence that the use of the maximum terms of imprisonment had been abused, I should be quick to support the hon. Gentleman, but there is no such evidence. No one has sought to advance that argument. However, there must be occasions when it is necessary for the ultimate penalty to be used, even if on rare occasions, to deal with special occasions that are offensive to everyone. For those reasons, having kept my remarks to the shortest possible time, I suggest that we resist both amendments.

Mr. Fairbairn: I shall confine my remarks to Government Amendment No. 150. A number of important issues are raised because this is essentially an English Bill dealing with English matters, yet inappropriately there are slipped into it various Scottish matters.
First, I pay tribute to my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), who not only brought that fact to my attention but has given us such a distinguished report on what is the proper procedure for legislation between our two systems of law.
It is abominable—I can put it no lower —that there should be slipped into an English Act that has nothing to do with the law of Scotland changes in an Act that was passed only seven months ago—namely, the Sexual Offences (Scotland) Act. I do not approve of many of its provisions.


3.15 a.m.
For the Government to have the effrontery to propose amendments to what they legislated for Scotland so short a time ago, and then, in the name not of the Lord Advocate, who has not the decency to be present and is even paired tonight, but of the English Secretary of State for the Home Department, who has nothing to do with the law of Scotland, to withdraw them without reason is a matter that the House should not disregard in view of the report of the Committee of which my right hon, and learned Friend the Member for Huntingdonshire was the distinguished chairman. That is not the way to legislate.
If Scotland has a separate Sexual Offences Act, which was passed into law so short a time ago, whatever its faults, is it not wrong that the Government, in the absence in Committee of the Lord Advocate and in the name of the English Home Secretary, who happens to be Welsh and who, whatever his many benefits, is presumed to be ignorant of the law of Scotland, should first propose and then withdraw an amendment without explanation?
Perhaps the Minister of State does not understand. Amendment No. 150 seeks to withdraw the amendment that was previously before the Committee. The Sexual Offences (Scotland) Act 1976, Chapter 67, had its penalties allegedly changed in Committee, and now, without explanation, it is to be unchanged.
Schedule 10, page 87, starts "After item 19". I do not know what item 19 is. There is no item 19 in the Sexual Offences (Scotland) Act 1976. There is no schedule with 19 items. What is item 19 meant to be? I do not understand to what it refers. It has nothing to do with the Act that it is supposedly amending. What is item 19?
I hope that the Minister understands it. I certainly do not understand it, and no one I have consulted understands it. What does "After item 19" mean? There is no item 19 in the Act that the English Home Secretary is seeking to amend and over which he has no jurisdiction in the absence of the Scottish Law Officer, who is entitled to be in the House but who has not had the courtesy to come when the law of his country relating both to

jurisdiction and to sentence—the hon. Member for Pontypool (Mr. Abse) knows my feelings on these matters—is being discussed. This is a most important matter.
Therefore, we have this absurd schedule which states "After item 19", which refers to nothing. It is not in the original Act, it is not in the Bill, and it is not in the amendment. It provides:
For the words from 'shall be liable' onwards substitute 'shall he liable, in respect of an offence under paragraph (a)".
That refers to a male person who


"(a) knowingly lives wholly or in part on the earnings of prostitution, or
(b) in any public place persistently solicits or importunes for immoral purposes,
shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding six months".
The original Act provides that any male who knowingly lives wholly or in part on the earnings of prostitution shall be liable to that punishment, and any male who solicits persistently for immoral purposes, whether, presumably, for female or male immoral purposes, shall be subject to the same punishment. In the original Act there was a punishment which was restricted to summary procedure in the summary court. I do not know whether the Minister understands the procedure in Scotland. The summary court means the sheriff court and "on indictment" means in the High Court. The penalties depend upon the court to which the case is taken and upon the procedure which is used.
Under the amendments which are now apparently to be withdrawn, not only was the penalty altered for the second offence without reference to the first, but it is not stated what is the basis upon which it would be competent to try a case in the sheriff court or the High Court and whether under summary or solemn procedure. It is an offence to this House that a Bill which deals essentially with the law of England should suddenly float off into the law of Scotland—

Mr. Hooley: The hon. and learned Gentleman has said that 14 times.

Mr. Fairbairn: Yes, and I shall say it the 15th, 16th and 17th times—

Mr. Deputy Speaker (Mr. Bryant Godman Irvine): Not if the hon. and


learned Member has any respect for the Chair.

Mr. Fairbairn: If people care to make cynical and sedentary interruptions they must take the consequences, and perhaps the consequences will be that I shall say the same thing again and again until the Government get this matter right.

Mr. Mikardo: On a point of order, Mr. Deputy Speaker. Is it in order for an hon. Member to go on saying the same thing again and again and again?

Mr. Deputy Speaker: I gave the hon. and learned Gentleman an indication that such a course would not be approved.

Mr. Fairbairn: I am obliged to the hon. Member for Bethnal Green and Bow (Mr. Mikardo) for saying what he had to say again and again and again in order to demonstrate that repetition would not be in order.
It is, however, important that we should not have to discuss amendments of this kind in the absence of the Law Officers and when the Ministers proposing the amendments are not in charge of Scottish legal matters.

Sir David Renton: Perhaps I can assist my hon. and learned Friend by pointing out some strange drafting. Page 87 of the Bill, to which the amendment refers, contains a table, and that is part of Schedule 10. The beginning of the schedule is on page 80, and that is headed,

SCHEDULE 10

AMENDMENTS OF CRIMINAL PROCEDURE (SCOTLAND) ACT 1975".

We then find in the last paragraph on page 86 that there shall be inserted a new schedule 7A to the 1975 Act which shall be identical with Schedule 1 to the 1975 Act except that certain items are to be deleted:
the items set out in the following table shall be inserted as there indicated".

That is the table referred to on page 87 and is the answer to the mystery about the two items referred to there.

Has it occurred to my hon. and learned Friend that it is very strange that the Criminal Procedure (Scotland) Act 1975 should have added to it a table dealing with subsequent Scottish legislation,

namely, the Sexual Offences (Scotland) Act 1976, which, in its turn, is to be amended by a criminal law Bill referring mainly to England and Wales in 1977?

Mr. Fairbairn: I am obliged to my right hon. and learned Friend. That makes the point. It is not a frivolous point. It is a very important point of draftsmanship and of principle. It is quite improper that an amendment to a Bill passed in 1976 should be back included in the schedule to a Bill passed in 1975 by an English Bill drafted in 1977. This is no way to legislate.
I note that, throughout our debates on this Bill, not only has the Scottish Law Officer competent to be here not been present but nor have the Scottish nationalists, who always make such a claim of their interest in the features of their own country. Not one of them has been here, and it is because of a lack of interest.
I urge seriously upon the Minister of State that this is extremely bad draftsmanship, that it is very bad practice, that it confuses the House and that it does not do justice to those who legislated a simple sexual offences Bill last year. It is a most improper procedure, and I hope that the Minister will explain how all this came to be done, why the Lord Advocate is not present, and why the law of Scotland is to be treated as a funny little bit of item trash in a Bill which does not deal with it.

Mr. John: Since the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) complained about the lack of explanation, perhaps at a later stage in my remarks I might be allowed to touch upon Amendment No. 150, which will give him the explanation that he seeks. But, first, it is right that I should deal with the new clauses.
My hon. Friend the Member for Pontypool (Mr. Abse) quoted some words of my noble Friend in the other place, and he will know that, when the matter was before the other place, soliciting by a man was in the category of offences triable only summarily. That meant a great diminution in the penalty, but it also meant that there was no right of trial. Over the subsequent period, it: was represented to us by many people that a right of trial was necessary because of the stigma which still attached to the crime and to conviction of the crime.
The problem was not one of the distribution of business. Of the 667 men tried for the offence in 1975, only 40 were tried in the Crown court. The remainder were tried in the magistrates' court. The choice before us was either to put it in the purely summary category, which meant lower penalties but no right to jury trial, or to put it in the "either way" category, which meant not only the right to trial but, for the most serious cases, a high maximum penalty. When we met those people who advocated this, those who supported making the offence triable either way indicated that this was a price which they were prepared to pay for having the right to jury trial. In making the offence triable either way we are meeting the main burden of complaint against the Bill which was that there was no right of trial by jury and that people felt that a stigma might be attached to them without that right.
3.30 a.m.
The Criminal Law Revision Committee is considering a general review of sexual offences. I believe that it might make recommendations that might affect what I have said. I prefer to await its report before acceding to what my hon. Friend the Member for Pontypool has said.
My hon. Friends the Members for Pontypool and for Ormskirk (Mr. Kilroy-Silk) raised the question of soliciting. At 30th June 1976 there were 201 prostitutes in prison or 0.4 per cent of the total prison population. My hon. Friend the Member for Ormskirk was right. This is where the Government have taken their stand. The working party to which my hon. Friend the Member for Pontypool referred said in its conclusion that
imprisonment, we feel regretfully, is a necessary sanction.
The working party said that before imprisonment could be imposed the defendant should have had four encounters with the law. It specified that they should be two cautions and two convictions. We must retain that sanction as a last resort. It is not used to the extent that my hon. Friend imagines, as the figures relating to the prison population show.
I turn to Amendment No. 150. This concerns the right that we have conceded in England and Wales of a jury trial for

soliciting by a man. It extends that provision to the law of Scotland so that there will be an equal right and a sense of justice.

Mr. Fairbairn: The Minister has got it wrong.

Mr. John: I hope that the hon. and learned Member for Kinross and West Perthshire will kindly allow me to finish. He has complained about the lack of any explanation but now he tries to intervene before I have begun. The hon. and learned Member says that I have got it wrong. I think that I am correct.
Deleting from the new schedule references to section 12 (1) (b) of the Sexual Offences (Scotland) Act 1976 has the desired effect of ensuring that the same mode of trial is secured for Scoltand. The hon and learned Member mentioned item 19. It refers to Schedule 1. The hon and learned Member has probably got that clear by now.
The hon. and learned Member was a member of the Committee and took part frequently in English debates. He took no exception to the absence of the Lord Advocate in Committee, despite the number of changes that were made to Scottish law. It is unfair to cavil at this stage at the absence of the Lord Advocate to deal with a matter which is within the purview of the Bill, is not out of step with other amendments and is designed to attach to the law of Scotland the same rights as are attached to the law of England and Wales. I hope that the House will approve the proposal.

Mr. Fairbairn rose—

Mr. Deputy Speaker: The hon. and learned Gentleman has exhausted his right to address the House on the new clause.

Mr. Fairbairn: On a point of order, Mr. Deputy Speaker. I did object in Committee to the absence of the Lord Advocate. What the Minister said was wrong.

Mr. Deputy Speaker: Whatever happened in a Committee is nothing to do with us here.

Mr. Abse: I listened with care to my hon. Friend the Minister of State, whose reply I found wholly unsatisfactory. He said that my right hon. Friend had agreed that the penalty of two years was too


high and should be reduced. It is true that this was part of a package, in which there was to be at the same time the end of trial by jury. It is extraordinary that my hon. Friend suggested that he had had representations in which he was told by some—whoever they may be that retaining the two years was a price they were prepared to pay in order to have the right to trial by jury. It is not they who are prepared to pay it. The price is paid by those who are imprisoned.
It is not possible credibly to come to the conclusion to which the original working party, the James Committee and the Home Office came, that three months is sufficient and then, when our gaols are packed, to say "The price you will pay for trial by jury is the opportunity to impose heavier sentences, which we really think are not necessary and which no other body has regarded as necessary." I find that unacceptable.
I did not expect any more from the right hon and learned Member for Wimbledon (Sir M. Havers) on the question of the women prostitutes. His squeamishness is apparent, as is the puritanical attitude of himself and those ladies who were accompanying him. Like most other hon. Members, I too, have inadvertently been accosted. It happened not long ago when my wife and daughter were walking behind me, coming out of a restaurant, and I had gone ahead to open my car door. I do not expect a wife and grownup daughter to have such a punitive attitude that they wish a woman to be imprisoned for approaching someone and, as in my case, being brushed aside. I think of a sad, tragic girl, bedraggled in the rain, and no doubt belonging to the category of drug addict or physically or mentally disabled. The attitude of the right hon. and learned Gentleman, who, having delivered a speech that was as short as it was inadequate, has left the Chamber, should not be given social sanction of the kind that he urged.
My hon. Friend the Minister said that not many women were involved. But the statistics show that over the past five years the number of women being convicted of street prostitution has increased considerably compared with the previous five-year period. That belies the contribution of the right hon. and learned Gentleman who seemed to think that the

permissive society would mean that there would not be so many such women.
The situation has altered, and if the right hon. and learned Gentleman will look at the statistics, he will find that a large number of these inadequate women are returning to the streets. By what the Minister says, there are not many, but if he takes the total of women prisoners he will find that in the last year for which I could get figures, more than 160 of these women were in prison—and that is an appreciable proportion, because they were the women who went directly to prison. The figure does not take account of those who went there indirectly for failure to pay fines imposed on them as prostitutes.
What are we to make of the fact that an appreciable proportion of women in prison are there for prostitution? Are we building a new Holloway to fill it with that sort of person? Why this constant ambivalence of men towards prostitutes? If they are not dramatising them in novels, they are antagonistic towards them because the only way of warding them off is by imprisoning them.
Objective assessments acknowledge that that is a useless way of dealing with women in great difficulty, being used by men, who then decide, with great pompousness, judging by the attitude of the hon. and learned Member speaking from the Opposition Front Bench, that one has to incarcerate them, even though the Home Office and everybody else, with the exception of the working party, as the Minister said, says that that should not be done.
The working party consisted mainly of senior police officers. While the views of the police are important, if the working party had been more representative and had included probation officers and social and after-care workers who have to carry the can after people have been sent to prison, it would not have wanted to continue the process of putting prostitutes in prison.
It is not in accordance with what I believe or have advocated nor with the way I opposed the street offences legislation which the right hon. and learned Gentleman opposite put before the House on many occasions. I opposed it then and I oppose its consequences now.
Although it is neither possible nor desirable to proceed to a Division, I am


not prepared to acquiesce in withdrawing the Clause.

Question put and negatived.

New Clause 21

THEFT OF LESS THAN£20

'(1) If the offence charged by the information is one of those mentioned in the first column of Schedule (Offence triable either way for which the value involved is relevant to the maximum sentence) to this Act (in this section referred to as "scheduled offences") then, subject to subsection (3) below, the court shall, before proceeding in accordance with section 20 above, consider whether, having regard to any representations made by the prosecutor or the accused, the value involved (as defined in subsection (5) below) appears to the court to exceed£20.

(2) If, where subsection (1) above applies, it appears to the court clear that the value involved does not exceed£20, then, if the accused is convicted of the offence, no court shall have power to impose on him in respect of that offence—

(a) on summary conviction imprisonment for more than three months or a fine greater than£500; or
(b) on conviction on indictment imprisonment for more than three months or a fine greater than£500.

(3) Subsection (1) above shall not apply where the offence charged—

(a) is one of two or more offences with which the accused is charged on the same occasion and which appear to the court to constitute or form part of a series of two or more offences of the same or a similar character; or
(b) consists in the incitement to commit two or more scheduled offences.

(4) If, where subsection (1) above applies, the offence charged is one with which the accused is charged jointly with a person who has not attained the age of seventeen, the reference in that subsection to any representations made by the accused shall be read as including any representations made by the person under seventeen.

(5) In this section "the value involved" in relation to any scheduled offence, means the value indicated in the second column of Schedule (Offence triable either way for which the value involved is relevant to the maximum sentence) to this Act, measured (unless the third column has no entry for that offence) as indicated in the third column of that Schedule; and in that Schedule "the material time" means the time of the alleged offence.'.—(Mr. Abse.)

Brought up, and read the First time.

Mr. Abse: I beg to move, That the clause he read a Second time.

Mr, Deputy Speaker: With this new clause we may discuss Amendment No. 128.

Mr. Abse: Here again we are in exactly the same position as that which I sought to describe when we dealt with male importuning. The Government accepted a proposal that when it came to a theft of£20 or less, the maximum penalty should be reduced to three months' imprisonment.
At the same time, the original Bill stated that such an offence would not carry a right to trial by jury. That was recommended by the James Committee and accepted by the Government. They accepted the view that for a case of one offence of the value of£20 it is sufficient that there should be a penalty of three months imprisonment. They then changed their minds under pressure about the question of trial by jury, but what on earth has that to do with maximum penalty? Because they have given a right to trial by jury, why must they go back on the James Report or on what the Home Office recommended, namely that the penalty should be not more than three months?
I sometimes ask myself in what kind of wonderland the Home Office is living. Everyone knows the disgraceful conditions of our prisons, and our whole purpose and objective in applying our minds to the Bill should be to see how we can safely reduce the prison population.
3.45 a.m.
Having come to the conclusion that three months' imprisonment was enough, why does the Home Office not now take its original stand? Having decided to give trial by jury because this was insisted upon, why is it moving away from the James Committee's recommendation that three months' imprisonment is sufficient?
The Minister of State, Lord Harris, recently referred to conditions in which there are two and sometimes three men living in a cell, and said that this was "an affront to any civilised society".
What, therefore, is the sense in allowing the maximum penalty to continue, knowing that for some of these offences it could be five or 10 years? What is the logic in that?
It was Roy Jenkins who said that when the prison population of England and Wales topped 42,000 the prison system would "approach the intolerable". We have approached and passed the intolerable. But when it is open to us to reduce the numbers, we still go on piling up the maximum sentences, even though we have already timorously come to the conclusion that sentences could be safely reduced.
I agree entirely with what was said recently by the Director-General of the Prison Department—that there is no point in beating about the bush, because the prison system
does not have the resources to deal properly with the number of people it is currently receiving. Some parts of the system are hard put to it to maintain reasonably civilised conditions".
Judging by my visits to some prisons recently, civilised conditions do not exist. What possible arguments, therefore, can be used against reducing the three months' penalty? All the arguments that could be discovered were put fairly and frankly in the report of the James Committee, just as it also set out the arguments on the other side.
The James Committee indicated that there were bound to be some anomalies, whatever figure was decided, and that it was bound to be arbitrary. It acknowledged that it is possible to envisage two offences which are almost indentical in character but differ slightly in value, and that it may be thought unjust that a person convicted of the former offence would be liable to a maximum of 10 years while the person convicted of the latter offence would be liable to only three months. But the Committee was right in saying that these values were more theoretical than real.
It is true that any dividing line must result in borderline cases, but, as the Minister of State well knows, monetary value was used for many years to classify offences of larceny and malicious damage, and it is still used to classify offences of forgery. I am well aware from my own experience in the criminal courts that many anomalies of the kind that are often put forward do not arise in practice.
After all, value is used to distinguish thefts in the United States and in most of the States of Australia. Considering the arguments, and the deplorable conditions

in our prisons, any reasonable Home Office should be inciting Ministers to make three months the maximum penalties for these offences. Once the courts are left with options, too often the maximum is needlessly accepted and not the minimum. There should be a ceiling. This opportunity should be seized to reduce the number of people going to prison for longer than necessary.

Mr. John: Throughout our discussions on the Bill the Home Office and I have been seeking ways of reducing the categories of offenders liable to imprisonment. So a blanket criticism cannot be made.

Mr. Abse: I have made none.

Mr. John: My hon. Friend and I may disagree on particular matters, but the Government have tried to reduce the prison population.
As for the James Committee, we went down with all colours flying. We advocated a limitation on the trial of small thefts, but in another place and among small parties in this House it was represented to us that the seriousness of a conviction for larceny and its effect on character, irrespective of the amount onvolved, justified trial by jury.
The James Committee said that an offence should not be triable on indictment if the maximum penalty with within the power of the magistrates' court to impose. That means that certainly the maximum penalties should be aligned, whatever the value of the theft, if trial by jury is retained. I hope that condign punishment for theft of less than£20 would be awarded only in the most exceptional cases, but it is only the rare cases that would go to trial. Therefore, even on the James Report, we have been consistent whether or not that is what we would have wished to do originally.

Mr. Abse: The Home Office do not have the guts to ensure that the judges are limited as much as the magistrates' courts normally are. It is clear from the replies on this new clause and New Clause 19 that Ministers are not prepared to curb the maximum sentences available to judges in the higher court. It is unfortunate when they know it is not right and that there are provisions for multiple offences, as in the James Report and in the new clauses that I have put down,


to say that it is confined purely to the one single case of theft involving£20. It does not show a great deal of courage.
I willingly accept that the Home Office and the Minister have tried on many occasions en route during the course of this Bill, as pressures have grown inside the prisons, to reduce the prison population. But they have not seized all their opportunities, and in this case they have failed to take the most obvious opportunity of all.

Question put and negatived.

Clause 1

THE OFFENCE OF CONSPIRACY

4 a.m.

Mr. Corbett: I beg to move Amendment No. 1, in page 1, line 10, after 'offences', insert
'(not being a summary offence or summary offences)'.

Mr. Deputy Speaker: With this we may also take Government Amendments Nos. 15, 17 and 18.

Mr. Corbett: The purpose of this amendment is to seek to make it impossible for a conspiracy charge to be brought on a summary offence, even though it is accepted that the penalty for conviction would be no more than for the substantive offence itself.
To try to clear the situation, I would ask the Minister to confirm that in furtherance of a trade dispute a charge of conspiracy would not arise, provided that it is a summary offence for which imprisonment may not be imposed. Will the Minister explain why he wishes to allow a conspiracy charge to arise on a non-trade dispute summary offence? We are concerned about the wisdom of allowing a magistrates' court in some circumstances to hear a conspiracy charge which has arisen on a summary offence. It is a very frightening charge to have to face, and the catch-all nature of a conspiracy charge remains. I hope that the Minister will seek to clarify the point, because we are puzzled to know why the Government seek to retain the power to bring a conspiracy charge arising out of a summary offence.

Mr. Arthur Davidson: I hope that my reply will satisfy my hon. Friend on this

matter. He seeks to remove the possibility of bringing a conspiracy charge in respect of a summary offence. The Law Commission's working party expressed the provisional view that, while conspiracy to commit one summary offence should no longer be an offence, conspiracy to commit more than one offence should continue to be a crime.
Most of those who commented on the working party's proposals agreed that conspiracies to commit summary offences should be crimes and the Law Commission finally concluded in its report that there will be occasions—though they will be rare—upon which conspiracy to commit summary offences ought itself to be the subject of penal sanctions.
The justification for this is the social danger inherent in the deliberate planning of offences on a widespread scale. The classic case quoted in the Law Commission's Report is the case of The Queen v. Blamires Transport Services. What happened in that case was that a company of haulage contractors, and its managing director, were found guilty of conspiring together and with other officials of the company to permit and encourage drivers of lorries to make false records of their daily driving over a period of six months and to drive their motor vehicles without taking the statutory rest periods. It is to deal with that sort of situation that the Law Commission recommended that conspiracy to commit summary offences should continue to be a crime.
I hope that my hon. Friend will accept that there could be cases in which serious offences that should be the subject of conspiracy charges could not be so charged if the amendment were carried.
My hon. Friend was right to imply that as a result of new amendments to the Bill which we shall move later the penalty for a conspiracy charge will not be the same as the penalty to commit a substantive offence. That will be brought into line with all the other conspiracy penalties.
I hope that that will go some way to allaying the fears that have been expressed. Although I understand those fears and the reasons for them, the case that has been mentioned is not an exception. The Law Commission recommended that the offence of conspiracy to commit an offence should continue. I


hope that the amendment will be withdrawn.
We are also discussing Amendments Nos. 15, 17 and 18 and it might be appropriate for me to deal with those amendments now. They are extremely simple. These amendments correct a defect in the drafting of Clause 4 whereby, in the case of conspiracy to commit a summary offence for which the consent of someone other than the Director of Public Prosecutions is required, the consent of both the Director of Public Prosecutions and the other person would be required for the conspiracy charge. This would be unnecessary and administratively clumsy. The effect of the amendments is to require the Attorney-General's consent for the cospiracy charge if his consent is required for the substantive offence and otherwise the Director of Public Prosecution's consent alone. I hope that my hon. Friends will be satisfied with the explanation that I have given.

Sir M. Havers: The Parliamentary Secretary has been of great assistance, but would he assist in another matter? When do we have a statutory rest in this House and at what time do we start legislating without due care? Is it after 4 a.m.? Perhaps the Minister could help.

Mr. Davidson: The significance of that escapes me now. It could possibly be that the right: hon. and learned Gentleman is referring to a description that I gave of reckless driving and that it so enchanted and fascinated him that he constantly refers to it. However, I do not intend to be drawn into that now.

Mr. Corbett: In view of the persuasive words and sensible comments of the Minister, I shall not withdraw the amendment but I shall not press it.

Mr. Farr: I want to raise a couple of points about the amendments and particularly Amendment No. 17. I want to call the attention of the House to what the situation will be if the Bill is enacted in its present state. Under Clause 4, to which Amendment No. 17 relates, it will be impossible in future for prosecutions to be undertaken without the consent of the Director of Public Prosecutions. In many cases in the past the DPP has been most unwilling to authorise another body to make a prosecution.
What I have in mind particularly applies to a current case involving four peregrine falcons that were stolen from Scotland and found by the Royal Society for the Protection of Birds in a shed near Lord's cricket ground. The participants in this affair are being charged by the RSPB with conspiracy under the Protection of Birds Act 1954. Such action would be impossible under Clause 4 without the consent of the DPP who, as far as I know, has never authorised prosecutions where the prosecutor was not a Government Department. I am sure that he would regard cases such as that involving the falcons as insignificant and not worth bothering about. The DPP's office is always slow, and prompt action would be impossible. If adequate evidence were not available at the time, the DPP would take so long to get round to the case that it might be too late.
The fact that the DPP has authorised prosecutions by Government Departments only is a weak spot in the Bill that is highlighted by the case to which I have referred. I hope that the Government will pay attention to this point before it is too late.

Amendment negatived.

Mr. John: I beg to move Amendment No. 2, in page 2, line 14, leave out from "offence" to end of line 17 and insert:
which is not punishable with imprisonment".

Mr. Deputy Speaker: With this, we may take Government Amendments Nos. 3, 4, 21 and 22 and the following Amendments:

No. 5, in Clause 3, page 3, line 17, after "question", insert "twice".

No. 6, in Clause 3, page 3, line 20, after "question", insert "twice".

No. 7, in page 3, line 22, after "and", insert "twice".

No. 8, in page 3, line 22, after "or", insert "twice".

No. 9, in page 3, line 27, leave out
imprisonment for a term not exceeding one year
and insert
such penalty as could have been imposed had the conviction been for any offence that he was convicted of conspiracy to commit.

No. 10, in page 3, line 28, leave out "one year" and insert "two years".

No. 11, in page 4, line 1, after "question", insert "twice".

No. 12, in page 4, line 3, after "question", insert "twice".

No. 13, in page 4, line 5, after "and", insert "twice".

No. 14, in page 4, line 6, after "or", insert "twice".

Mr. John: The amendment simplifies, but does not alter the sense of the clause, It takes out some unnecessary words. The other Government amendments fulfil undertakings that I gave in Committee to my hon. Friend the Member for Barking (Miss Richardson) who said that it was not entirely true that the penalties for conspiracy were being made wholly related to the penalties for the substantive offences because there was a minimum sentence of one year. I undertook to look at this point sympathetically, and the amendments ensure that there is an assimilation between the penalty for the substantive offence and the penalty for conspiracy.
I shall not comment on the Opposition amendments until they have been explained.

Sir M. Havers: Our amendments seek to provide power for the courts to impose on conviction for conspiracy a sentence of twice the sentence for the substantive offence. No doubt every hon. Member has read with interest and fascination the debate on this subject in Committee and is familiar with the arguments.
These are not political amendments. They are meant to cover the situation of a Mr. Big whose front men carry out the crimes that he plans and arranges. He may be brought into conspiracy cases, but often his part is very much bigger than the part played by those who carried out his arrangements. We seek to give the courts power to deal with him more severely than with his henchmen.
4.15 a.m.
The fear has been expressed that this power would be used by the courts in a way that would be wrong. I do not share that view. Let me take a simple case, that of a big drug ring. The carriers bring drugs into the country from Marseilles or the Far East. It is a highly organised and highly financed operation in which a number of carriers are used. It might be that those carriers are caught on the first trip. One hopes that they

are. Mr. Big, who has organised the carriers in a successive group of operations, might have brought the drug in Tibet. The part that he plays compared with the part played by those who bring the drugs in is hardly comparable.
What we are seeking to do is to enable the courts, in those circumstances, if Mr. Big can be put in the dock with the carriers, to give him a sentence that can be twice as much as the maximum sentence that can be imposed on the carriers. It is right that the House should be reminded that the Law Commission, although it originally considered that view, in the end came out against it. But those who have had experience in the courts, particularly with drug offences, feel that that power ought to be given. That is why we seek to double the sentence where conspiracy is proved.

Mr. John: We reject the Opposition amendments because we take our stand on the Law Commission's Report, which comes out for the principle of making the penalties for conspiracy analogous to the penalties for the substantive crime. That is the basic, philosophical view that the Law Commission reached, and we agree with it.
I am sure that the right hon. and learned Member for Wimbledon (Sir M. Havers) recognises the difficulties in what he is proposing. On 12th May, at column 84 of Hansard, and at other columns, he spoke forcefully about the consultations that he had had and the worries and anxieties felt by those whom he had consulted about the effects of this proposal. He said that the matter would be put right on Report so that the sentence was impossible only in exceptional circumstances.
I am bound to advise the House that, having examined the Opposition amendments, I find that they are in the same form as the amendments tabled in Committee and do not deal with the exceptional circumstances of the example given by the right hon. and learned Gentleman. Therefore, we get to the situation that if a maximum sentence was impossible, someone found guilty of conspiracy would receive double that sentence and he might serve a much longer sentence than someone serving a life sentence. That seems to be basically unfair and at variance with the views of the Law Commission, which


recommended that the penalty for conspiracy should be the penalty for the substantive crime.

Amendment agreed to.

Clause 3

PENALTIES FOR CONSPIRACY

Amendments made: No. 3, in page 2, line 43, leave out from indictment' to end of line 46 and insert—

(a) in a case falling within subsection (2) or (3) below, to imprisonment for a term related in accordance with that subsection to the gravity of the offence or offences in question (referred to below in this section as the relevant offence or offences); and
(b) in any other case, to a fine.

Paragraph (b) above shall not be taken as prejudicing the application of section 30 (1) of the Powers of Criminal Courts Act 1973 (general power of court to fine offender convicted on indictment) in a case falling within subsection (2) or (3) below.'.

No. 4, in page 3 leave out from beginning of line 11 to end of line 8 on page 4 and insert—
'(3) Where in a case other than one to which subsection (2) above applies the relevant offence or any of the relevant offences is punishable with imprisonment, the person convicted shall be liable to imprisonment for a term not exceeding the maximum term provided for that offence or (where more than one such offence is in question) for any one of those offences (taking the longer or the longest term as the limit for the purposes of this section where the terms provided differ).
In the case of an offence triable either way the references above in this subsection to the maximum term provided for that offence are references to the maximum term so provided on conviction on indictment'.—[Mr. John.]

Clause 4

RESTRICTIONS ON THE INSTITUTION OF PROCEEDINGS FOR CONSPIRACY

Amendments made: No. 15, in page 4, line 9 at beginning insert

'Subject to subsection (1A) below'.

No. 17, in line 13 at end insert—
'(1A) In relation to the institution of proceedings under section 1 above for conspiracy to commit—

(a) an offence which is subject to a prohibition by or under any enactment on the

institution of proceedings otherwise than by, or on behalf or with the consent of, the Attorney General, or
(b) two or more offences of which at least one is subject to such a prohibition,
subsection (1) above shall have effect with the substitution of a reference to the Attorney General for the reference to the Director of Public Prosecutions'.

No. 18, in line 15 after offence', insert 'which is not a summary offence'. —[Mr. John.]

Clause 5

ABOLITIONS, SAVINGS, TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMEND MENT AND REPEALS

Mr. Mikardo: I beg to move Amendment No. 19, in page 4, line 36, leave out subsection (3) and insert—
'(3) The offences of conspiring to corrupt public morals, conspiracy to outrage public decency, corruption of public morals, outraging public decency, are all hereby abolished.'.
This matter was considerably discussed in Committee, although not precisely in these terms. The amendment that was discussed at that stage was sympathetically received by hon. Members on both sides of the Committee and carried considerable support. The amendment was then withdrawn, and doubtless that is why it has been selected for consideration today.
I noted that in an earlier debate on New Clause 3 the hon. and learned Member for Montgomery (Mr. Hooson), who speaks on the law in these matters and in any other matters with infinitely more authority than I can, argued, and seemed to carry the assent of the House, that it was inconsistent for the Government to move New Clause 3 and to resist the amendment.
We are here entering into matters that are largely of subjective opinion rather than of judgment. That has been said on more than one occasion. Mr. Roy Jenkins, when he was Home Secretary, as was quoted in Committee, told the House that indecency was a meaningless concept far too vague to be the test of criminal liability. It would almost seem that the present Home Secretary is seeking to do in this Bill what his predecessor would not have done. Moreover, what he is seeking to do appears to be contrary to the recommendations of the Law Commission.
There have been difficulties over the centuries in this branch of jurisprudence. Over and over again during the centuries the judges have made crimes of things that are not crimes by statute. The object of the amendment is to ensure that a crime is a crime only if the statute says that it is a crime. In that sense it is for the removal of doubt.
I suppose that I should make a long speech, and I could. I say that because we had evidence earlier this morning that the Government are prepared to make concessions that could be extremely damaging to those who make extremely long speeches, concessions that open the way to the return of Rachmanism.
If I do not succeed in convincing my hon. Friend's on the Government Front Bench by a speech in which there is more cogency and wit than volume, we shall have to give further consideration to how we conduct our proceedings on the remainder of the debate on the amendment and on the debates on the other amendments that are to come forward. I hope that it will not be necessary to weary the House in the way that some hon. Members on the Opposition Benches wearied the House earlier in order to get the Government to agree with me, but if need be it can be done.

Mr. John: The Government recognise that common law offences in respect of public morals and decency are unsatisfactory and ripe for abolition, but as the Law Commission said, they are ripe for abolition when statutory offences of a satisfactory nature are put in their place. That is why, for example, we put in a statutory provision to cover films during the period in which the Williams Committee is undertaking a fundamental review of the law and the statute law that the Law Commission did not look at completely.
I am entirely with my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) in wishing to get rid of the common law in this matter. But we wish to do so only when we are satisfied that the statutory basis that will replace it is as sound as we can make it. Frankly, there has been a great deal of criticism of the statutory provisions by many people. Therefore, we felt it right to set up a working party, a decision

which I believe commanded fairly widespread acceptance in the House.
I hope that my hon. Friend will allow the Williams Committee to proceed with its examination of the statute law upon the basis of an assurance that, when there are recommendations for a satisfactory statute law, it will be our intention to move to the position that he wants. If we pass the amendment in the absence of any statutory provision, I believe that we shall leave gaps in the law. That is evidenced by the fact that a number of the recommendations of the Law Commission are not included in the Bill.

Mr. Mikardo: In view of what my hon. Friend said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Arthur Davidson: I beg to move Amendment No. 20, in page 5, line 13, leave out 'one year' and insert 'six months'.
The amendment to Clause 5 is, in effect, consequential on Amendment No. 65 to Clause 9, which deals with trespassing on the premises of foreign missions.
The amendment to Clause 9 makes two distinct changes, both of which are in accordance with undertakings given in Committee to my hon. Friend the Member for Barking (Miss Richardson). First, it removes the possibility of conviction on indictment with a maximum penalty of 12 months' imprisonment. The maximum penalty now will be six months' imprisonment on summary conviction. The Government consider that a higher penalty than that would be excessive for an offence that may be committed—my hon. Friend took great exception to this point—without any violence or threat of violence.
Secondly, the amendment makes it necessary to obtain the consent of the Attorney-General before a prosecution is brought for an offence under Clause 9. That, again, carries out an undertaking that I gave in Committee. I think that my hon. Friend will agree that the consent of the Attorney-General will go a long way to ensure that capricious or frivolous prosecutions are not brought.
In view of the possible international and public policy implications involved in the occupation of diplomatic premises,


this seems a sensible precaution. I hope that the amendment will have the approval of the House.

Amendment agreed to.

Amendments made: No. 21, in page 5, line 22, leave out indictable'.

No. 22, in page 5, line 23, leave out 'on conviction on indictment'.— [Mr. Coleman.]

Mr. John: I beg to move Amendment No. 23, in page 5, line 29, at end insert—
'(6A) Incitement and attempt to commit the offence of conspiracy (whether the conspiracy incited or attempted would be an offence at common law under section 1 above or any other enactment) shall cease to be offences.'.
This amendment fulfils an undertaking given in Committee to the hon. and learned Member for Runcorn (Mr. Carlisle) who thought it desirable to make it clear beyond doubt that there should be no offence of attempting to conspire. We agreed at that time. That view commanded wide acceptance on both sides of the Committee. We make that clear beyond a peradventure by the amendment.

Amendment agreed to.

Clause 6

VIOLENCE FOR SECURING ENTRY

4.30 a.m.

Mr. John: I beg to move Amendment No. 25, in page 6, line 22, after prove ', insert (a)'.

Mr. Deputy Speaker: With this we may take the following Government amendments: Nos. 26, 33, 44, and 79 to 80. We may also take Government Amendment No. 81, in Clause 12, page 10, leave out line 6 and insert—
'(1A) References in this section to a building shall apply also to any structure other than a movable one, and to any movable structure, vehicle or vessel designed or adapted for use for residential purposes; and for the purposes of subsection (1) above—'.
and Amendment (a) thereto, to leave out other than a movable one' and insert
'whether movable or not which is used or intended to be used in connection with the use, whether permanent or temporary, of the land on which it is situate'.
We may also take Government Amendment No. 83.

Mr. John: This is a series of drafting amendments which are consequent upon technical amendments moved in Committee to clarify the question of access and so on and to make it more comprehensible. I hope that the House will accept that what was done in Committee is now clarified by the amendments, which can now be accepted by the House.

Amendment agreed to.

Amendment made: No. 26, in page 6, line 25, at end insert

'or

(b) that part of the premises in question constitutes premises of which he or any other person on whose behalf he was acting was a displaced residential occupier and that the part of the premises to which he was seeking to secure entry constitutes an access of which he or, as the case may be, that other person is also a displaced residential occupier.'.—[Mr. John.]

Mr. Kilroy-Silk: I beg to move Amendment No. 27, in page 6, line 33, leave out
'to imprisonment for a term not exceeding six months or'.

Mr. Deputy Speaker: With this we may take the following amendments:

No. 28, in page 6, line 35, leave out£1,000' and insert£500'.

No. 29, in page 6, line 37, leave out paragraph (b).

No. 45, in Clause 7, page 7, line 22, leave out
'to imprisonment for a term not exceeding six months'.

No. 46, in Clause 7, page 7, line 23, leave out£1,000' and insert £500'.

No. 54, in Clause 8, page 7, line 38, leave out
to imprisonment for a term not exceeding three months or".

No. 55, in Clause 8, page 7. line 40, leave out£1,000' and insert£500'.

No. 56, in Clause 8, page 7, line 41, leave out paragraph (b).

No. 62, in Clause 9, page 8, line 41, leave out
'to imprisonment for a term not exceeding six months or'.

No. 63, in Clause 9, page 8, line 42, leave out'£1,000' and insert'£500'.

No. 64, in Clause 9, page 8, line 43, leave out 'six' and insert 'three'.

No. 66, in Clause 9, page 9, line 1, leave out paragraph (b).

No. 67, in Clause 9, page 9, line 2, leave out 'one year' and insert 'six months'.

No. 72, in Clause 10, page 9, line 29, leave out from 'to' to end of line 30 and insert
'a fine not exceeding £200.'.

We may also take Government Amendment No. 65.

Mr. Kilroy-Silk: The amendments would make the new offence created by Clause 6 non-imprisonable. As the clause stands it makes it an offence punishable by up to two years in prison for anyone but a displaced residential occupier to use or threaten violence either to persons or to property, and the "or to property" is an important point that we must consider for the purpose of securing entry into premises if it is known that there is someone on the premises who is opposed to entry.
At a time of acute prison overcrowding we should not automatically assume that a newly-created offence should become imprisonable. In that kind of situation the onus of proof must lie with the Government to show why the new offence should automatically carry the sanction of imprisonment. If nothing else, the amendment gives the Government the chance to explain that point.
In considering whether imprisonment is necessary it is appropriate to point out that if the civil procedures for dealing with occupiers were quicker, more efficient and easier there would be no need for the offences and therefore for making them imprisonable. The new offence created by the clause is not necessary to penalise genuinely violent entries. These can be penalised with imprisonment, if that is appropirate, within the existing law including that relating to assualt, criminal damage, unlawful assembly and public order.
The offence could, however, be used in certain situations where no violence actually occurs. As with the other criminal trespass offences created by the Bill, except the offence relating to embassy and consulate premises, the main principle affects two groups. The first is the squatters in unoccupied property. The

second is employees involved in an occupation arising from an industrial dispute.
The situation with squatters can be seen only in the light of a very acute problem of homelessness, particularly in the major cities, combined in the last decade or so with the number of houses that are standing empty. For example, the 1966 sample census showed 470,000 empty buildings in England and Wales, whereas the 1971 census showed a figure of 675,000. The Nationwide Building Society survey for 1976 showed that the figure had then gone up to 850,000.
Although squatting is not a real or long-term solution to the housing crisis, it is a fact that we have to acknowledge although many Opposition Members refuse to acknowledge, that for many thousands of homeless people and homeless families squatting is a short-term necessity. Four surveys of squatting in Lambeth, Haringey, Cardiff and seven London boroughs all showed that more than half of the squatted houses had children living in them. They also found that the overwhelming majority of the squatters had tried to find a legal form of accommodation before resorting to squatting. Despite the headlines and media stories to the contrary, very few squatters are politically motivated. They are motivated simply by a desire to have a roof over their heads and those of their families.
In many local authority areas, especially in the large cities such as London, squatting has become semi-respectable. Many local authority social service departments refer homeless families or potentially homeless families to squatting groups and squatting agencies which, they anticipate, will direct those families to the nearest available empty house. Agencies which refer people to the Advisory Service for Squatters, which is the London-based squatting organisation, include the housing departments of nearly all the major London boroughs, citizens' advice bureaux, probation officers and, on occasions, even the police. In that situation, it is unfortunate that the Government should take the line of making the offence under this clause imprisonable.
Because of purchasing delays or the problems of rehousing, it may very often take a council years to empty all the


houses in an area scheduled for demolition, with the result, that the houses vacated first can be empty for a decade or more before they are pulled down. We all know of homes which have been gutted by local authorities. Many of them have been taken over by squatters who, in a real sense, have given them a new lease of life at minimal cost. Unfortunately, because of their centralised and bureaucratic structures, local authorities can never do what squatters have been able to do to houses in the same time or as cheaply.

Mr. Mikardo: Every word that my hon. Friend says in this connection is true and very weighty. Because of the circumstances that he is describing, there are cases of borough councils entering into agreements with squatters' organisations to permit them to occupy. In cases like that, it is very silly to make an offence of it.

Mr. Kilroy-Silk: My hon. Friend is right. Within the last few days, one London borough has come to agreement with squatters who have rehabilitated a terrace of houses which the council had left empty and was intending to demolish. Having seen what can be done to rehabilitate them, the council intends to see that they remain habitable and a permanent accession to the housing stock of the authority, and 1 has agreed that the squatters should remain there.
We should not always take the view that squatting is anti-social or evil. In many cases, it can perform a valuable social function and add to the benefits of society as a whole. If we did not have the present housing problems we should not have squatting. Nobody likes to squat. Nobody wants to have to occupy a home which is not his own. Most people squat out of necessity, not because of an ulterior motive or a desire to be difficult.

Mr. Graham Page: If I have understood the gist of the hon. Gentleman's argument it is that squatters might be offenders under the clause. Is it not possible that the offenders might be those seeking to take back from squatters business premises that have been taken over by them?

Mr. Kilroy-Silk: That could be so. I am concerned about the two main groups

that will be affected by the new imprison-able offence. We are creating a new offence and making it imprisonable. Other categories could be caught by the provisions in the clause, but I am concerned with the two main categories—squatters about whom there has been a great deal of publicity and employees occupying their place of work.
Bearing in mind that violent entry can be punished with imprisonment under the existing law, is it necessary to give the courts the power to imprison the type of people to whom I have referred, even if one accepts the argument—and I do not —that an offence must be created to enable people to be removed speedily from properties in which they are squatting?

Sir M. Havers: I have listened with interest to the hon. Member's argument, which he has made well. Would he make clear to the House and to those who will read his speech that this does not create the offence of squatting? It does not provide criminal sanctions against squatters. It provides sanctions when violence is used to secure entry or to seek to remain.

Mr. Kilroy-Silk: The right hon. and learned Member for Wimbledon (Sir M. Havers) is correct. We are creating a new offence of violent entry and we have tagged on to that the potential sanction of imprisonment. It is that which concerns me.

Mr. Douglas-Mann: Further to the intervention by the right hon. and learned Member for Wimbledon (Sir M. Havers), under Section 6(4) an offence can be committed if a pane of glass is broken in the course of securing entry?

Mr. Kilroy-Silk: That is what concerns me. It has ramifications, if for no other reason than because of what has occurred over the Grunwick dispute and what has been said in the House about the definition of violence in relation to that dispute.
The second category involves employees who occupy their workplace in the course of an industrial dispute. Such occupations arise in a variety of circumstances. Occupations have been undertaken for wage rises, union recognition and against redundancies or closures. For example, in 1972 and 1974 the Fisher Bendix factory in my constituency, under a variety of names, experienced


several sit-ins. The works were occupied first with the help of my right hon. Friend the Member for Huyton (Sir H. Wilson) and then, as a result of help from the present Government, the workers set up a co-operative. Every time they had to occupy that factory violently to secure entry and, I suppose, commit criminal damage, however trivial, by welding the gates together and taking other precautions. That has been redeemed by the fact that several hundreds of jobs have been saved, in a town where there is an intolerably high level of unemployment, matched by no other town of comparable size in the rest of Western Europe. There are many such examples. The occupation at Upper Clyde Shipbuilders also saved many jobs.
4.45 a.m.
I only echo the words that my right hon. Friend the Secretary of State for Employment has used several times in the past few weeks when I say that the criminal law is a particularly blunt and insensitive instrument in industrial disputes, and in particular that imprisonment of workers—or the threat of imprisonment, which may be sufficient—for action they have taken in an industrial dispute is likely to exacerbate an already highly-charged situation.
We should remember that no violence to persons or property need actually occur for the offence in the clause to be committed. In a letter to the Home Secretary dated 11th February this year, Mr. Len Murray, the General Secretary of the TUC, said:
The general council are concerned with the implications of this provision for workers in industrial occupations. I should make clear that the TUC are totally opposed to the use or threat of violence in any circumstances.
I think that we would all echo that.
However it has sometimes been held in law that the more presence of a large number of people can itself constitute intimidation and thereby the threat of violence, and we are worried that the courts might interpret this provision in an unsympathetic way.
That is precisely the point that has been made by many Conservative Members and outside observers as a potential way of dealing with the present disturbances outside the Grunwick factory. Not a day has gone by without some hon. Members suggesting to my right hon. Friend the Home Secretary or my right hon. Friend

the Secretary of State for Employment that the large numbers demonstrating at Grunwick themselves constitute an act of violence and intimidation and should be dealt with appropriately.
I assume that my hon. Friend will say, in all sincerity, that no court could so construe the provisions, but I should not be so happy now as we were in Committee about accepting that kind of assurance, particularly in the light of what has happened at Grunwick in the past few weeks. On the basis of the way in which the courts have been moving, and some of the perverse judgments in recent months, it seems to me likely that a court would interpret numbers in themselves as a threat, intimidation or violence.
Bearing in mind that any genuinely violent entry—entry that any of us, without legal training, knowledge or background, would accept as violent—can already be punished under the existing law, why is it necessary to create a new offence? If we can, under existing law—the Criminal Damage Act, The Public Order Act and all the rest—penalise those squatters who engage in violence and those workers, whom none of us condones, who engage in violence, why is it necessary to create the new offence in this clause and to tack on to it the sanction of prison? Is it necessary to adopt the provocative, indeed inflammatory course of giving courts powers to imprison workers who take part in occupations or squatters who take part in what is for them a necessary or socially-desirable occupation?

Mr. Graham Page: I am inclined to support the hon. Member for Ormskirk (Mr. Kilroy-Silk) in this amendment. Of course, as he has said, squatters or employees taking over a factory may well become offenders under this clause, but I think it doubtful.
In most cases, squatters are careful not to be violent in making their entry. They find a way of getting in without being violent. They probably make an entry when no other person is on the premises. The occasions are also few and far between when employees taking over would be violent in making an entry. It may be that with large numbers intimidation might be construed as violence, but it is unlikely. The most likely is the


exasperated owner or person entitled to occupation who finds that there are squatters there and, being exasperated, he breaks a window or forces a door to get in.
I am doubtful whether, in the circumstances, we should create an offence which will carry a penalty, on summary conviction, of a term not exceeding six months, or a fine of£1,000 and a penalty on conviction on indictment which may not exceed two years. Offences of this sort would be committed by a person exasperated by a situation with no violence about it, An trying to get back into premises. If he is the displaced residential occupier he would not be affected, but I have in mind the case of business premises or non-residential premises, or where the owner is not himself resident. I would hesitate a long time before proposing the penalties contained in the clause. For that reason I support the amendment.

Mr. Ron Thomas: I support what my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) has said. The right hon. Member for Crosby (Mr. Page) has concentrated on Clause 6, but we have also to deal with Amendments Nos. 45 and 46 to Clause 7. That draws attention to the fact that a climate has been created in which we shall be sending squatters to prison whether they have committed violence or not. I do not suggest that the violence aspect takes away from the philosophy in Clauses 6, 7, 8 and 9, which all carry a prison sentence of one kind or another. This is one of the worst pieces of legislation which our Government have brought in, and the unsatisfactory features of it are highlighted in this clause.
My hon. Friend has a right to draw attention to the whsle question of sit-ins and occupying factories and so on. There is no doubt that in the present Grunwick situation, employees sacked by Mr. Ward would find themselves on a criminal charge if they got beyond the gates of the factory, however that happened.
I think that the TUC is absolutely right to draw our attention to the serious dangers there are in Clause 6, and I shall do all I possibly can to get the clause, or parts of it, deleted from what I feel is altogether a most unsatisfactory Bill.
Time and time again during the debate the Opposition have referred to instances where people were temporarily away from home and returned to find a squatter there. We were told that this is going on right across South-East England and in the Bristol area, but we were not given any detailed examples of this squatting. It was always a matter of somebody having told somebody else about it. There seemed to be no substantiated cases.
I understand the police to say that they have quite sufficient powers to deal with this sort of thing at the moment and that squatters can be dealt with under a number of other pieces of legislation which have already been mentioned in the debate.
As for the displaced residential occupier, there has been no mention of the number of houses that this person can occupy at one time. Presumably he could have a number of houses with bits of furniture in them. A property speculator could have a fair number of properties, and he could be described under this legislation as a displaced residential occupier. I sincerely believe that unscrupulous landlords will make use of this legislation. We have to remember also that it relates not just to the displaced residential occupier but also to a person acting on his behalf. This could certainly lead to property companies and unscrupulous landlords using strong-arm tactics and gangs to carry out evictions.
The lawyers have pointed out that there is already a way in which the civil courts can deal with these cases, and I am very disappointed that the Government have found it necessary to bring in this legislation in this form, especially in relation to Clauses 6, 7, 8 and 9.

Mr. Mikardo: I do not believe that anyone who heard the speech with which my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) moved the amendment could possibly have failed to be very considerably impressed by it. Indeed, at least one Conservative Member was impressed by it, in addition to a number of us on the Government Benches.
I shall refer briefly to the amendments which Mr. Speaker has grouped together within this group, and which refer to Clause 6, including the one mentioned by my hon. Friend the Member for


Bristol, North-West (Mr. Thomas). When the clause was discussed in Committee, considerable doubts were expressed —I have read the reports of the proceedings very closely indeed—from both sides of the Committee. I think I am right in judging that what motivated those doubts more than anything else was that an offence can be committed under this clause even if no violence at all has taken place.
5.0 a.m.
Violence against the person would be a different kettle of fish. No one would condone it, let alone want to minimise the penalties. But under Clause 6, violence occurs if someone breaks a padlock or a pane of glass. In the most extreme case, if someone got in without breaking anything but then broke the glass to get the key to the fire extinguisher to deal with a fire which had broken out, he would be committing violence. I do not suggest that he would be sent down for a long time, but he would have committed violence under Clause 6.
The Law Commission has totally failed to establish that the existing law cannot deal with violent entry—in which case, why do we need the new legislation? Clause 6 could be used with little possibility of defence against people carrying out peacefully what many of us would accept as normal trade union practices—peaceful picketing and sit-ins. A number of factories are today operating successfully, to the benefit of employment and the export trade, which would not be in operation but for at least one sit-in. Those activities could now be penalised.
The TUC is strongly opposed to the clause. I have read that the Government are trying to get friendly with the TUC this week. There is talk of a contract with a bit of quid pro quo. There seems to be a lot of quid and very little quo about arrangements between the Government and the TUC. I sometimes wonder whether the social contract is not the most unequal contract in history since Jacob persuaded his brother Esau to sell his birthright for a mess of pottage.
We are trying to secure a modus operandi with the trade union movement. This is a tiny decision. No inflation would be caused, and there would be no damage to our balance of payments, if

the Government made a concession. Aside from that, here we have an offence created which is an offence even if no violence has been committed. In circumstances where violence is committed the existing law is adequate to cope with it. It is on these grounds that we object to the clause, and above all to the provision of a sentence of imprisonment in these circumstances.

Mr. Douglas-Mann: I want to associate myself with the amendment and to draw attention to the provisions of Clause 8 in which the possession of an offensive weapon by the trespasser at the time of being on premises becomes a criminal offence.
Clause 8(2) says:
In subsection (1) above "weapon of offence" means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.
This means that a screwdriver could be and has been regarded in the past by the courts as an offensive weapon. The clause is drawn so widely that virtually any person who is squatting is likely to be in possesion of an offensive weapon.
These clauses—6, 7 and 8—are totally unnecessary. If we have to have penalties, they should not involve imprisonment. There are already satisfactory remedies under the civil law. If used properly these will ensure that residents are able to recover possession of their premises within a matter of days.
In practice we are legislating mainly because a myth has been created which suggests that large numbers of people are moving into privately occupied property, squatting there and resisting the demands of the legitimate occupier to remove themselves. I have never heard of such a case. We had the story in The Times by a young lady who purported to give an example, but when it was investigated it was proved to be fictitious.
One instance has been produced by the hon. Members for Christchurch and Lymington (Mr. Adley) and Twickenham (Mr. Jessel) where there was difficulty in recovering possession because an elderly lady in her 90s had gone to stay with her children for a considerable time. When her house was found to be occupied the children were afraid to tell the old lady,


and consequently could not get her authority to institute civil proceedings. I have asked around among hon. Members but I cannot find another case to justify this legislation.

Mr. Graham Page: I know of at least three instances where converted houses and flats have been occupied by squatters. These were unable to be let because of the squatters. I declare an interest in that I am a director of the company that owned the houses, although I stress that I have no equity holdings in that company. These homes had been newly converted and done up, and the company was unable to let them.

Mr. Douglas-Mann: I agree that this may cause great inconvenience, not only to the property developers, but also to local authorities, and housing associations. However, thy have the right to a speedy remedy under the civil law. The only case that could be justified as a criminal offence requiring a remedy in criminal sanctions would be one involving a displaced residential occupier.
As a consequence of introducing this remedy for that fictitious case—because we have still not had an example of it—we shall be put under pressure to extend it to the sort of cases instanced by the right hon. Member for Crosby (Mr. Page) —totally inappropriate cases for a criminal sanction enabling possession to be recovered. There is provision in the rules of the Supreme Court in this respect and there is power to expedite in urgent cases. There is no need for criminal sanctions, and there is no need for imprisonment—certainly not when the offence involves somebody who breaks a pane of glass to secure entry or who is found in possession of a screwdriver, which could be a weapon of offence against property. A combination of Clauses 6 and 8 could carry that interpretation.
Clauses 6, 7 and 8 are repugnant to a large number of people. It is not only the Tribune Group that objects to them, but people in many sections of society regard them as unnecessary and undesirable. If we are to have them at all, they should carry minimal penalties. I support the amendment.

Miss Richardson: This is in many ways the most important part of the Bill, because it creates a new set of offences. In

all the discussions and agitation that took place following the case of the Shrewsbury pickets and the resultant apprehensions of trade unionists and others about the law of conspiracy—and in all our hopes that the law of conspiracy would be revised—I do not think that many people realised that the Government would get rid of conspiracy on the one hand and at the same time would introduce five new criminal offences.
I beg the Minister to believe—and 1 know that he has had representations on this matter across the board—that there is great anxiety in the Labour movement about this matter at all kinds of level—from branch and trade council level right up to representations by the TUC. I am as opposed to these clauses now as I was when I tabled a number of amendments in Committee. I was not convinced by what I heard.
Other hon. Members have referred to individual cases in order to point up the dangers that may be faced. I wish in this context to refer to Clause 10. I believe that we are seeking to widen that clause in a way that we have never done before. This offence involves resisting or obstructing court officers in executing their possession orders. This could affect a large number of people. It would make any resistance to eviction, however passive, by workers, students or squatters in occupation, a criminal offence. That would even include the process of sitting down.
5.15 a.m.
A few moments ago one of my hon. Friends referred to Grunwick. Under the Bill some of the people, at least, who have been supporting the picket at Grunwick could well be picked up and accused under Part II of the Bill.
I was pleased to notice that since I put a query to the Minister in Committee the word "uniformed" has been put before the word "constable" in all the clauses of the Bill. I should be grateful if the Minister would look at Clause 10 where he has inserted in subsection (5) the words "uniformed constable". That part continued:
or any officer of the court".
In the Committee proceedings we established that it would be proper for the constable not to be a plain clothes policeman and to be easily recognisable. However, here is mentioned an officer of the


court who would not be in uniform. How are the people who are to be arrested by an officer of the court to recognise him or to realise that the arrest is being made by an officer of the court?
This clause, like many others in the Bill, is full of dangers. I am glad that my hon. Friends will support me in this, and I shall take the matter to a Division.

Mr. Corbett: With great respect, Mr. Deputy Speaker, I wonder what we are talking about. Do we in this House give birth to legends or do we aid in the fostering of them? My hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) referred to the precise problems that we face with squatting. I want to remind the House quickly that last year I tabled a Question to the Home Secretary asking:
how many cases have been reported to the police in England and Wales in each of the past five years of (a) owner-occupiers, (b) public tenants and (c) private tenants being unable to gain entry to their homes because of the activities of squatters; in how many cases there have been prosecutions and with what result; and whether he will make a statement".
One would have thought that that would be a satisfying set of statistics that would confirm what many people felt about not just the size of the problem but the growing incidence of such interference with the rights of public and private tenants. That was not so because all that the Minister was able to tell me was:
The information requested is not collected centrally.
No doubt someone will put me right if I am wrong, but I assume that the Home Office do not know, and that if it does know, the Question was not answered, because the Home Office cannot have it both ways. If it is the Minister's intention that the problem is serious enough for the proposals in the Bill to be made, why is he unable to give the House chapter and verse of the instances where squats have taken place?
On the same day I also asked:
how many (a) reports to the police, (b) prosecutions and (c) convictions there have been in England and Wales in each of the last five years involving trespass on (i) domestic property, (ii) commercial property and (iii) industrial property.

However, I was told:
I regret the information as requested is not available.
We are repeatedly told in the newspapers and by hon. Members on both sides of the House that the number of squats in domestic, commercial and industrial property is growing daily and that the strength of the police force is being sapped because the police must attend to these breaches of the law. I ask again for figures about what has been going on during the past few years. Unfortunately, the Minister replied:
I regret that the information as requested is not available."—[Official Report, 6th December 1976; Vol. 921, c. 8.]
If the information is in the Home Office, I should welcome instruction from behind the Chair or elsewhere on how to get it. Nothing more than what I have read was offered in the reply, and I conclude that the Home Office does not have statistics about the incidents of prosecutions and convictions for trespass in the past five years within the categories of property about which I asked. So why are we spending time at this hour of the morning debating the subject as if there were parades and demonstrations in the street on the back of hard evidence?

Mr. Graham Page: Since trespassers cannot be prosecuted, the Home Office answer on prosecutions for trespass may have been correct.

Mr. Corbett: That may be so, but I was told that no information was known in connection with the previous Question. There is a gap in the way in which the Home Office keeps central statistics. Apparently it does not have the facts to justify the introduction of these provisions.
Believing that things were better in Scotland—as my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) keeps telling me—I put down a similar Question to the Secretary of State for Scotland. I was told that the precise information sought was not available—though I was told about a curious Scottish offence called lodging.
Can the Minister of State, even at this stage. give us factual evidence of this problem in residential, commercial and


industrial areas or give us the information on which he bases his opinions?

Mr. John: This has rightly been a long and interesting debate dealing with some of the effects of Part II of the Bill and the penalties to which the amendments are directed. It is not widely understood that the existing legislation referred to by my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) is the Forcible Entry Acts, that date from the fourteenth and sixteenth centuries. They are still on the statute book and provide a penalty of up to two years in prison for a person who forcibly enters a property. It is not true to suggest that we have created five new offences in order to assist with conspiracy charges. These came about as a result of the examination of the Forcible Entry Acts and what I should have thought would be regarded as the laudable desire to bring them up to date.
In two respects, there are significant differences in the Bill that constitute a better deal for accused persons. First, at the moment all that is needed to be proved is force, and that can consist of the insertion of a piece of celluloid to force back a catch, which would not be violence under the new definition. Instead, we are substituting "violence or threat of violence".
Secondly—and this bears on the many examples that have been given—in the event of entry into empty property there would be an offence under the Forcible Entry Acts, but under this Bill, and in particular under Clause 6, there has to be present on the premises someone who is opposed to the entry of the person who is trying to secure entry by violence.
There is a justification for that provision. It has to do not with the conspiracy part of the Bill but with the Law Commission's Report, and I therefore do not believe that it is right to suggest, as has been done in some of the more extreme examples that have been given, that this provision is repressive. If this part of the Bill did not become law, there would still be a statutory body of law that would affect people who tried to enter other people's property, and that law would be more harsh in its application to some of the categories than my hon. Friends believe.
My hon. Friend the Member for Hemel Hempstead (Mr. Corbett) spoke about evidence. There is difficulty in collating the information, but I can tell him that

between 1970 and 1975, 67 cases of forcible entry were prosecuted before the courts. Of those, 25 were in the last year. It is not the case that these medieval Acts are not being used. They have been used to a greater extent in recent years than they were previously. What we have to do is not only modernise the law but make sure that laws with antiquated phraseology and an over-zealous imposition of conditions upon people are not maintained, and that up-to-date and sensible laws are put in their place.
My hon. Friend the Member for Bethnal Green and Bow referred to the TUC. I can tell him that we met members of the TUC on four occasions. We had discussions with them, and we have met some of their genuine anxieties. I believe that as a result they are satisfied both as to the effect of the law and as to the amendments that we have made.
I understand that the question of penalties is one that concerns many hon. Members. I have recognised that, not only in the two clauses, but in the clause which concerned my hon. Friend the Member for Barking (Miss Richardson) in Committee. In Clause 9(5) there is a right to trial not only summarily, but upon indictment. The effect of Amendment No. 65, which reflects one that my hon. Friend moved in Committee, would be to knock out paragraph (b) so as to make Clause 9 deal only with a summary offence for which the penalty would be six months or a maximum fine of£1,000, instead of a maximum of one year under paragraph (b).

Mr. Mikardo: That applies only to Clause 9, does it not?

Mr. John: I was leading from one to the other.
We have talked a great deal about imprisonment and about a penalty being a sufficient deterrent. It is said that the length of imprisonment does nothing to make the defendant obey the law, but rather hardens his attitude. I hope that my hon. Friends will follow what I am trying to say, because it is complicated.
I am prepared to accept Amendments Nos. 29 and 56, the effect of which will be to assimilate Clause 9 with Clauses 6 and 8. Clause 7 is already assimilated in this respect. Therefore, all four clauses will be on a par. There will be only summary trial and the maximum penalty


will be six months' imprisonment and a fine of£1,000 instead of two years' imprisonment—

Mr. Kilroy-Silk: I understand that my hon. Friend is accepting Amendment No. 29 in Clause 6. We already have the Government amendment to Clause 9. I also understand that he accepts Amendment No. 56 to Clause 8. What is happening to what is left?

Mr. John: The effect of what I propose will be to assimilate modes of trial and penalties throughout the four clauses. With these acceptances I hope that my hon. Friends will not press the remaining amendments.

Mr. Kilroy-Silk: My hon. Friend has been magnanimous in the way in which he has responded to the debate and the pressures of my hon. Friends. I am pleased that he has responded so readily to the cogent arguments that have been deployed throughout. I express our gratitude and thanks for his having accepted the amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 a.m.

Amendment made: No. 29, in page 6, line 37, leave out paragraph (b).—[Mr. Kilroy-Silk.]

Miss Richardson: I beg to move Amendment No. 30. in page 6, line 39, leave out subsection (6).

Mr. Deputy Speaker(Sir Myer Galpern): With this amendment it will be convenient to discuss Government Amendments Nos. 31, 48, 58, 69, 73 and 76.

We may also discuss the following amendments:

No. 47, in Clause 7, page 7, line 25, leave out subsection (5).

No. 57, in Clause 8, page 8, leave out subsection (4).

No. 68, in Clause 9, page 9, line 3, leave out subsection (6).

Miss Richardson: The amendment seeks to remove subsection (6), which states:
A constable may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, guilty of any offence under this section.

Our reason for seeking its removal is partly to draw attention to the difficulties that exist under the clause. My hon. Friends and I are perturbed at the dread that comes into people's minds at the thought of a constable arresting without a warrant, although I am told that it is perfectly all right for constables to do so. Now that we have reference to uniformed constables we shall have a bit more protection, or they will become a little more obvious, but our intention is to draw attention again to the difficulties that arise.
We are all grateful to the Minister of State for having accepted two earlier amendments to the clauses. I should like to add a word on Clause 9. Indeed, I believe that one of my hon. Friends wishes to refer to it, too.
In the last debate we did not refer to the difficulties arising from Clause 9. We have a later amendment down on that clause. However, it is worth using this opportunity to refer to Clause 9, because it affects different people from those to whom we referred in the previous debate.
Clause 9 applies to embassy premises. I raised this matter in Committee, as the Minister will recall. I still believe that the clause, as drafted, presents considerable dangers to two categories of people. First, the innocent person who goes to an embassy for a legitimate and ordinary purpose—such as getting a visa or making an inquiry—could be caught under the provisions of this clause if an officer of the embassy, for whatever reason, decided to call the police.
Secondly, deputations go to and people demonstrate outside embassies. I should think that the 20 or so Labour Members present have at some time or another accompanied a deputation to or joined a demonstration outside an embassy. Therefore, unless we are more reassured by the Minister than we have been before, the clause could affect any one of us. I know that my hon. Friend the Member for Sheffield, Hillsborough (Mr. Flannery) is a regular visitor to embassies. Therefore, he will probably want to be reassured in case he is ever arrested on embassy premises.
On a more serious note, we know that student demonstrations, in particular, have given rise to the inclusion of Clause


9. Students demonstrate against their Governments if they believe that those Governments are wrong about some things that are illiberal. Students have a right to do that. But, if they do, they may be caught by the provisions of Clause 9. Therefore, we should look more closely at this part of the Bill to ensure that people are protected.

Mr. Mikardo: I want to add two further points to those that have been so cogently adduced by my hon. Friend the Member for Barking (Miss Richardson) who is bearing up well on her second successive all-night sitting.
First, some of us—perhaps all—make protests about arbitrary arrests—the knock in the middle of the night—in countries where the rule of law is not honoured as well as it is in this country. The defence put forward by totalitarian regimes that use that kind of police power is that the men who make the knock in the middle of the night do so because they have reasonable cause to suspect that the person behind the door at which they are knocking has committed an offence. Therefore, they argue, they have the right to arrest without warrant. So long as in circumstances as slender as those set out in this subsection we retain the right to arrest without warrant, we have lost any right to lecture people in other countries about their behaviour.
There is a more powerful reason than that for the amendment. I should have thought that it would gain the unhesitating support of all the lawyers in the House. The clause seems to violate the whole tradition of British justice. It says:
A constable may arrest without warrant anyone who is…guilty of an offence under this section.
Nobody is guilty of an offence under the section until he has been found guilty in a court. The whole of our legal system is based on the argument that a person is innocent until a properly constituted court has found him guilty. That is not what the Bill says. We cannot have that.
The Minister had better take this away and think about it again. I should have thought that every lawyer and every person concerned to maintain the presumption of innocence until guilt is proved would vote for the amendment. If the Bill referred only to a reasonable suspicion of guilt that would be all right. But the Bill cannot continue as it is.

Mr. Corbett: I can see the argument behind the Bill in circumstances in which, minutes after a person or group of persons arrive to secure forcible entry into a property to carry out a squat, a policeman in uniform in the course of his duties arrives on the scene. But that would be a rare and very great coincidence. In that event, if a constable in uniform passes by, let us say, 15 minutes later and observes that the house has been broken into, why is it that, with that well-founded suspicion, he should not be required. having satisfied himself that he has reasonable cause, to get on his bike, whip round the corner to the magistrates' court, demonstrate that reasonable cause to the magistrate, and secure a warrant?
5.45 a.m.
This is at the core of the argument. A coincidence of this kind will be rare. In all other circumstances, it is very likely that the constable, in the course of his duties, will observe that there has been a forcible entry to a property on his beat. He will not need anyone to tell him that it has been broken into. He will see that. If he wants to check it, he can try to push open the door and he will know that someone is inside. If he asks "What are you doing in here?", he will probably be told "We are having a squat", and his reasonable cause will be fully justified.
What is the argument against a constable in uniform in that position having to go to get a warrant in order to take the action proposed in the Bill? I cannot understand why this procedure, in all those circumstances, is not considered to be a better and safer one from everyone's point of view.

Mr. Arthur Davidson: I am aware of the concern that my hon. Friends feel about the powers given to the police to arrest without warrant. But this is not a new power. It is not a power which never existed before and which has suddenly been invested in the Bill.
Let me first deal with the offences with which these amendments are concerned—the offences which give rise to the power to arrest without warrant.

Mr. Mikardo: My hon. Friend keeps using the word "offences". They are not offences until a court has held them so to be.

Mr. Davidson: Of course they are not offences until the court has held them so to be, and, on the point that my hon. Friend also made, a person is not guilty until a court has found him guilty. He is not guilty just because a policeman thinks that he is. He is guilty only when a court has found him guilty.
These offences are directed at immediate and explosive or potentially explosive situations in which it seems right to the Government that the police should be able to intervene without warrant. Clause 6, for instance, concerns the offence dealing with violence for securing entry. By its very nature, this is a public order type of offence.
The purpose of the clause is to deter breaches of the peace. That is the argument which the Law Commission used. If the police see an offence of violence being committed or threatened, it is unreasonable to expect them not to seek to intervene. The police might be passing or be called to the scene by a neighbour.

Mr. Corbett: That is fair enough.

Mr. Davidson: The public would expect them to intervene to restore peace and calm when violence has occurred or when more violence is likely to occur. It is inconsistent with the general desire to deny them the authority to intervene effectively. Without the power of arrest they would have no effective method of intervening. That is why the power is given to them. It would not be realistic to expect the police to intervene and then to go away and apply for a warrant.

Mr. Mikardo: My hon. Friend is making a perfect defence and I accept it totally. The police should have this power. They might be called in by a member of the public. On those grounds the Minister is making a perfect defence of a subsection stating: "a constable may arrest without warrant anyone whom he reasonably suspects to be guilty of an offence under this section". If that was what the subsection said I should not object. But the clause states that a constable may arrest anyone who is guilty. I cannot accept that because nobody can be guilty until he is charged and convicted, except in a totalitarian State.

Mr. Davidson: I am interested in my hon. Friend's view because it is not the same as that of some of my other hon.

Friends. They take exception to the basic principle of giving power of arrest without warrant, in any circumstances. That seemed to be the argument of my hon. Friend the Member for Barking (Miss Richardson) in Committee. My explanation extends to other clauses since they all involve public order.
I shall now direct my remarks to the strong argument made by my hon. Friend the Member for Hemel Hempstead (Mr. Corbett). I do not want to itemise each explanation because the same argument applies.

Mr. Corbett: I want to clear up the confusion. I did not dissent one dot or coma from what the Minister said about the necessity of the police, in the circumstances that he outlined—having witnessed or been called to a scene of threatened violence—having the power of arrest without warrant. But I subscribe to the view of my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) that if that is the intention, why is the clause not written in that way? We find it offensive that the clause implies that the constable may decide guilt or innocence. That is what it states.

Mr. Davidson: Under British law that is not possible.

Mr. Mikardo: Then my hon. Friend should not write it into a Bill.

Mr. Davidson: I have taken advice, and am told that this is the normal form in which such powers have always been included in Bills—

Mr. Mikardo: That may not make it right.

Mr. Davidson: Indeed, and it may make it consistently wrong. But the one thing that has not happened as a result of the use of the words is the knock in the night. Policemen do not have the power to judge the guilt or innocence of a person, and they will not have it as a result of the clause.

Mr. Graham Page: My recollection is that these are not the normal words. I think that the normal words are "if a constable has reasonable cause to suspect a man of committing an offence". I believe that they are in the Criminal


Justice Act. I do not recognise the words in the Bill.

Mr. Davidson: If I am wrong I shall be happy to acknowledge that fact, but I am advised that the wording of the powers of arrest in Clauses 6 to 10 is common form and follows that in the Criminal Law Act 1967.

Mr. Andrew F. Bennet: Why is the word "guilty" used in Clause 6(6) and yet in Clauses 8(4) and 9(6) the words are
in the act of committing an offence"?

Mr. Davidson: I do not think that can take the argument further. I do not want to fall back on the argument that the wording has always been used and therefore is always right. If it is true that it has always been used, the evil consequences that my hon. Friends fear, and that I equally fear, have not resulted from it, and they will not result from the clause.

Mr. Graham Page: As we have one clause saying one thing and two saying another, though intended to say the same, would you accept a manuscript amendment, Mr. Deputy Speaker, so that the three clauses all say the same thing? They are apparently meant to do the same thing.

Mr. Deputy Speaker: I could not give a ruling until I had seen the amendment.

Mr. Davidson: I do not think that I can go further. I can only act on the advice that I have been given. I fear the knock in the night as much as my hon. Friends do and would not wish to think that any legislation that I had anything to do with would encourage it or bring it about in this country.
May I explain the Government new clauses—

Mr. Mikardo: Will my hon. Friend first seek to make an answer to the point put to him by my hon. Friend the Member for Stockport, North (Mr. Bennett)? Why should not all four clauses use the same words? Why should not my hon. Friend, perhaps in another place, alter Clauses 6(6) and 7(5) to have the same words as Clauses 8(4) and 9(6)? It is a simple, straight question. Cannot we have an answer?

6.0 a.m.

Mr. Davidson: All I can tell my hon. Friend is that the Law Commission advised this particular form of drafting. That might not satisfy him but it is a fact.

Mr. Douglas-Mann: Is not the reason that in Clauses 7, 8 and 9 there are continuing offences, whereas in Clause 6 the offence will have been committed by the time the constable became aware of it. The wording should not be the same where arrest is restricted to the case where the offence is continuing.

Mr. Mikardo: How is a chap guilty when not charged?

Mr. Douglas-Mann: That is a different matter.

Mr. Davidson: My hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) has described the difference between the types of offence, and I think he has done so accurately.

Mr. Mikardo: It does not meet my point.

Mr. Davidson: I accept that. It does not meet the point my hon. Friend is making, in that in the Bill someone is said to be guilty before being found guilty. I am doing my best, but I find this a difficult one to explain, as my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo) knows. I do not want to pretend that I can give him an explanation that will satisfy him.
The Government amendments give effect to an undertaking which I gave to my hon. Friend the Member for Barking (Miss Richardson), who made a very useful contribution to the Committee proceedings. I said that I would look at the possibility of limiting the powers of arrest and search in Clause 11 to a constable in uniform. On reflection, it seemed right to the Government that the police should be in uniform when enforcing the law against the type of offences dealt with in Part II and that there was something to be said for requiring this to be shown on the face of the Bill. The amendments carry out that undertaking.
The Government take the view that the powers of arrest in Clauses 6 to 10 are so closely linked to the powers of search and entry, because in the nature


of the offences it will usually be necessary to enter premises in order to make an arrest, that it seems right to make the same amendment throughout Part II so that the requirement for a constable to be in uniform extends to search and entry and to power of arrest.
I hope that that will give some help to my hon Friends in the dilemma in which they find themselves.

Mr. Mikardo: I am not in a dilemma. It is the Minister who is.

Sir M. Havers: It might help the House if I explain the pedigree of the law about arrest, which goes back to another Labour Criminal Law Act, that of 1967, which appears to be in as big a muddle as the Bill, as far as it goes.
In Section 2 of that Act, dealing with powers of arrest of a constable without a warrant, one notes exactly the words:
Where a constable, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence.
It goes on to say:
A constable may arrest without warrant any person who is, or whom he, with reasonable cause, suspects to be, about to commit an arrestable offence.
That is fine, but we find that the draftsman is not as stupid as we thought, because before that, when dealing with powers of arrest in Section 2 (2), we read:
Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, in the act of committing an arrestable offence.
Curiously enough, however, subsection (3) states that
Where an arrestable offence has been committed, any person"—
that is, a private citizen as well as a constable—
may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, guilty of the offence.
That has stayed as part of our law for 10 years. It has a sufficiently respectable pedigree for us not to be able to tear the pants off the Minister of State any more than we have done alredy. It seems to me to be sufficient, therefore, although one may not like the form of words, to leave it there.

Mr. Mikardo: I am always deeply respectful of the right hon. and learned Gentleman's observations on the law, but bastardy is still bastardy when a child is 10 years old, is it not?

Sir M. Havers: We had one bastard in 1967 which will be very difficult to alter and we have another one here which I do not think will make it any worse.
This is an important power that police officers must have. If we strike this out today, it will have to be put back in the Lords, one hopes. I doubt whether one can have a manuscript amendment at this stage. Therefore, it seems to me that it is best to leave it, since I believe that the House agrees that the power ought to be preserved. If this were the first time it had been in that form, I should find it very difficult to accept it and would have to support the amendment, but since there is this historic precedent for it, I think that we must leave it.

Mr. Graham Page: My right hon. and learned Friend has said that it cannot be amended and he doubts whether it can be done by manuscript amendment. If I may suggest wording for a manuscript amendment and ask you, Mr. Deputy Speaker, if you will accept it—

Mr. Deputy Speaker: The matter of selection is entirely in the hands of Mr. Speaker, and he would have to decide whether to select it. I cannot select it. I can only pass it on.

Mr. Graham Page: In those circumstances, Mr. Deputy Speaker, I shall not try any more.

Amendment negatived.

Amendments made: No. 31, in page 6, line 39, after 'constable', insert 'in uniform'.

'or of any access to any premises'. — [Mr. Arthur Davidson.]

Clause 7

ADVERSE OCCUPATION OF RESIDENTIAL PREMISES

Mr. Arthur Davidson: I beg to move Amendment No. 35, in page 7, line 6. after 'trespasser', insert
'after having entered as such'.

Mr. Deputy Speaker: With this we may take Amendment No. 38, in page 7, line 9, at end insert—
'(1A) For the purpose of this section "trespasser" shall no: include—

(a) a person who enters or re-enters for the purpose of continuing to occupy the premises after the termination of his lawful authority to occupy those premises; or
(b) a person occupying the premises at the time of the termination of the lawful authority; or
(c) any person who is invited onto the premises by a person continuing to occupy the premises who is not a trespasser by virtue of (a) or (b) above.'.

Mr. Davidson: This is a technical amendment which will not, I think, arouse quite the same difficulties as Amendment No. 30. I apologise to my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo). I have never seen him in a dilemma which was insoluble. This is a technical amendment which arises from a point which, again, was made by my hon. Friend the Member for Barking (Miss Richardson) in Committee. The effect of it is to provide that in no circumstances could the Clause 7 offence be committed by a person who had entered premises lawfully—for example, to occupy them as a licensee—even though he had subsequently become a trespasser as a result of the withdrawal of his licence. I am sure my hon. Friends would agree that a person who bad occupied premises lawfully ought not to have to leave them instantly on request in order to avoid arrest and conviction for a criminal offence.

Mr. Corbett: Amendment No. 38 seeks the same object as Amendment No. 35. I am advised that there are at least two main meanings of the word "entered". The amendment seeks to ensure that lawful occupiers holding over are not caught by the clause. Because the normal criminal definition of entry is simply walking in and taking possession, an ex-licensee enters as a trespasser when he returns home from work, lust as much as a squatter does when he moves into an empty property.
The Government no doubt hope that the courts will give entry its civil housing law meaning—that because, at the beginning of a notice, a licensee entered with permission, that entry will override the later trespasses. Is it conceivable that in certain circumstances the courts will be

tempted to take the literal meaning of the word rather than its technical meaning? Amendment No. 38 is designed to meet that danger. Is my hon. Friend sure that the courts will interpret the word "entered" as the Government amendment intends?

Mr. Arthur Davidson: I am assured that the meaning that my hon. Friend has in mind is the correct one, but if there is anything wrong we shall look at the matter before the Bill goes to another place.

Amendment agreed to.

Mr. Mikardo: I beg to move Amendment No. 36, in page 7, line 8, leave out 'or on behalf of'.

Mr. Deputy Speaker: With this we may take Amendment No. 39, in page 7, line 13, leave out
'or a person acting on behalf of a displaced residential occupier'.

Mr. Mikardo: Subsection (1) provides that a person commits an offence if he is a trespasser and refuses to leave if required to do so, not only by the displaced residential occupier—there is no objection to that—but also by someone acting on the occupier's behalf. This raises problems. How does the man know that the person speaking to him is acting on behalf of the occupier? If the person is a constable—in uniform or in plain clothes but with a warrant card—it is easy enough. But private police organisations and security companies are mushrooming. Until not so long ago—they may still exist—property owners, including those who lived in their property, used strong-arm men to act on their behalf. Some nasty incidents have resulted. As it stands, the subsection—a parallel situation is covered by Amendment No. 39—is objectionable on those grounds.

6.15 a.m.

Mr. Graham Page: I do not regard this as a small matter. It is very substantial. However, I disagree with the hon. Member for Bethnal Green and Bow (Mr. Mikardo) about the amendment. Is he really suggesting that an old lady who has been in hospital and is returning home should have to shout through the letter-box to give orders personally? Is he saying that those who are away on holiday when they receive a message from


their agent telling them that squatters have moved in should have to come back? It is quite unreasonable to say that they cannot engage someone on their behalf.
There is also protection for squatters in subsection (2). It is an offence to charge if the squatters believe that the person acting on behalf of the displaced residential occupier is not so acting. The amendment would place people in great difficulty.

Mr. John: If the right hon. Member for Crosby (Mr. Page) can stand the shock of my agreeing with him, I shall say that his point is valid. There are cases where a person has, or should have, someone able to act on his or her behalf. Also, I agree that there is the defence for the person in occupation. It would be valuable for any person who was seeking to act on behalf of a displaced residential occupier to furnish himself with the clearest evidence that he was doing so, or subsection (2) could afford him difficulties.

Mr. Mikardo: I am grateful to the right hon. Member for Crosby (Mr. Page) for the points he has made, and I accept that they have validity. In view also of what my hon. Friend the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 37 in page 7, line 9, at end insert—
'(1A) Subject to the following provisions of this section, any person who is on any premises used wholly for residential purposes as a trespasser is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of a person who, not being a displaced residential occupier, is nevertheless entitled to occupy the premises and who, at the time when the requirement to leave the premises is made, both intends within six weeks either to occupy the premises himself or (while remaining so entitled) to secure their occupation by some other person and informs the trespasser or causes him to be informed accordingly. The provisions of this subsection shall not make guilty of an offence any person holding over after the expiry of a tenancy or licence.'.

No. 40, in page 7, line 14, at end insert
'or, as the case may be, a person within the description provided in subsection (1A)'.—[Sir M. Havers.]

No. 44, in page 7, line 20, at end insert—
'(3A) Any reference in the preceding provisions of this section to any premises includes a references to any access to them, whether or not any such access itself constitutes premises, within the meaning of this Part of this Act.'.

No. 48, in page 7, line 25, after 'constable', insert 'in uniform'.—[Mr. John.]

Clause 8

TRESPASSING WITH A WEAPON OF OFFENCE

Miss Richardson: I beg to move Amendment No. 52, in page 7, line 32, leave out from 'above' to end of line 35 and insert:
'"offensive weapon" means any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him.'.

Mr. Deputy Speaker: With this we shall take Amendment No. 53, in page 7, line 34, after first 'person', insert: 'or for causing injury to property'.

Miss Richardson: The purpose of the amendment is to define "offensive weapon" as far as it is possible to do so. During our earlier debates it was suggested that an offensive weapon might be a spanner or a cane. In an idle moment I thought that it might be a good idea to try to devise a definition, because the words "offensive weapon" are so capable of misunderstanding.
In Committee I used the example of a ball of string. If somebody found a ball of string, could it not be interpreted as an offensive weapon since it could be used to bind somebody? I use that example to show that what might appear to be innocent items could be used by mischievous persons or could be misunderstood to be offensive weapons when they were not so intended. I do not know whether the definition in the amendment will be regarded as reasonable, but it would seem to constitute a description of what an offensive weapon might be.

Mr. John: I must tell my hon. Friend that the drafting of the amendment is thoroughly defective. She seeks to define the phrase "offensive weapon", whereas there is no mention of offensive weapons in the Bill. The phrase used in the Bill


is "weapon of offence". Therefore, my hon. Friend's wording is unacceptable.
In using the term "offensive weapon" my hon. Friend is going back to earlier legislation, but we have taken our definition from the Theft Act 1968, which is a more modern definition. It defines "weapon of offence" in exactly the same way as we have adopted. It has caused no difficulty in establishing what is a weapon of defence, nor, in my experience, has it led to any fanciful or exaggerated interpretation. Therefore, I hope that my hon. Friend will not press her amendment.

Amendment negatived.

Amendments made: No. 56, in page 7, line 41, leave out paragraph (b).— [Miss Richardson.]

No. 58, in page 8, line 1, after 'constable', insert 'in uniform'. [Mr. John.]

Clause 9

TRESPASSING ON PREMISES OF FOREIGN MISSIONS, ETC.

Mr. Martin Flannery: I beg to move Amendment No. 61, in page 8, line 6, at end insert:
'if he acts in a violent way or a manner likely to provoke a breach of the peace'.
The aim of Clause 9, which is concerned with trespassing on the premises of foreign missions, is to make peaceful occupations a criminal offence. The aim of the amendment is to take such action outside the area of criminal offence.
When foreign embassies are occupied it is invariably done by a group of quiet but desperate people who usually argue passionately but quietly as they go about the usually blood-stained tyrannies in their own countries. If such action were to be made a criminal offence, offenders would be transported back to their country of origin, with all that that means in a tyranny. I often fear that such a thing could happen in the Chilean situation. It certainly happened in the case of the Iranian Embassy in 1975. Often students, particularly those from Iran, have gone to demonstrations deliberately hooded so that nobody can recognise them, because they fear for their relatives in their home country.
One gets the impression from the clause that such occupations occur

on a grand scale, but that is untrue. My hon. Friend the Member for Coventry, South-West (Mrs. Wise) asked the Home Office on 21st June 1976 how many instances of trespass by more than one person on the premises of a foreign mission in the United Kingdom there had been in the last two years. The reply is worthy of note and is worth quoting in full as it shows that there is no necessity whatever for this offence:
There have been six instances known to the police in London in the last two years involving the Embassies of Cuba, Iran, Bangladesh, Libya (twice) and Syria; no weapons were used or displayed; and there was no actual bodily injury. Figures outside London are not available."—[Official Report, 21st June 1976; Vol. 913, c. 318–19.]
It can be seen that these occasions have been quiet and few and have been carried out by people of honourable intent in order to preserve life and to prevent the torture and often the death of relatives.
There are other occasions than these trespasses when being in a foreign embassy can lead to arrest and punishment. I was involved in one such incident some weeks ago. I led a delegation to the Chilean Embassy with a letter concerning 2,500 prisoners who had disappeared and of whom the Chilean Government claimed to know nothing. Some my right hon. and hon. Friends know what I am talking about.
The Chilean Government have adopted the attitude of saying that they do not know of any person about whom a family asks. We went to talk about a large number of such prisoners and about one in particular. We had a letter to be delivered to the embassy, and a good number of leading and powerful figures in the country had been trying to help to free these prisoners. When we arrived at the embassy we knocked at the door and were admitted by the porter, who was simply a man doing his job. He admitted us politely. Having allowed us inside, he found that somehow there had been a lack of communication and there were no arrangements—as we had been told there would be—for us to meet the ambassador.
We had been preparing for the meeting for many weeks with the help of Amnesty International. Some of the people involved were in despair about their relatives. One could see the feeling of despair creep over them. They


were almost ready to stay there, in which case they could have been arrested had this legislation been in operation.
I was leading the deputation. I managed to quieten them and I asked to see the ambassador. I pleaded that we should see someone of importance since our arrangements had been made properly. We were able to see the ambassador's second-in-command and we put our case as well as possible and avoided what could have been an unseemly wrangle culminating in someone being arrested.
Such situations often occur because of communication failures. Many lives are at stake on such occasions and people feel deeply and passionately. They do not feel like going away without having achieved something. Indeed, we managed on that occasion mainly thanks to the courtesy of the porter at the embassy.
Such frustration happens on many other occasions—for instance, when someone goes for an important visa for a country which does not have the liberties that we have. When such a visa is not ready or forthcoming, frustration often builds up and there is always the chance of an arrest. This is an important issue in which delays and refusals can cause frustration and arrest. The punishments provided in the Bill are Draconian and wrong, and something should be done about them. There is a grave risk of being arrested for a criminal offence, when no such offence was remotely intended, if Clause 9 goes through as drafted. Those who go on peaceful protests should be less liable to arrest and prosecution provided they protest quietly and non-violently against some of the most dreadful things that occur in the world.

6.30 a.m.

Mr. Arthur Davidson: The reason for Clause 9 is simple. It is needed to discharge our international obligation to preserve the inviolability of such premises. The obligation would not be discharged if the offence were left out of the Bill or were limited to violent behaviour or behaviour threatening to cause a breach of the peace as my hon. Friend proposes.
We are required to guarantee to representatives of foreign and Commonwealth Governments—this is a strict liability under international convention—that they need not rid themselves of trespassers but should be able to call on the forces of law and order to do so on their behalf. Our own interests are also at stake, because we cannot expect our premises abroad to be treated better than the way we treat the premises of other Governments here.
I assure my hon. Friend that there will be no unwarranted prosections under Clause 9. The amendment that I moved earlier in response to the fears that he had expressed provides that no prosecution may be brought without the consent of the Attorney-General.

Miss Richardson: Can my hon. Friend remind the House of the date on which we were supposed to have fulfilled this obligation? If, as I recall, it was some time ago, can he tell us why it has taken so long to bring it into effect?

Mr. Davidson: I am sure that no one wishes to go back to the old position that we discussed at length in Committee. We have abolished the offence of conspiracy to trespass and I am sure that my hon. Friend would not wish to go back to that. Our obligation is laid on us under the Vienna Convention on Diplomatic Relations of 1961. That required legislation, and it will now be enacted.

Amendment negatived.

Amendments made: No. 65, in page 8, line 44, leave out from 'both' to end of line 2 on page 9 and insert—
'(5A) Proceedings for an offence under this section shall not be instituted against any person except by or with the consent of the Attorney General.'.

No. 69, in page 9, line 3, after 'constable', insert in uniform [Mr. Arthur Davidson.]

Clause 10

OBSTRUCTION OF COURT OFFICERS EXECUTING PROCESS FOR POSSESSION AGAINST UNAUTHORISED OCCUPIERS

Amendment made: No. 73, in page 9, line 31, after 'constable', insert 'in uniform'.— [Mr. Arthur Davidson.]

Clause 11

POWER OF ENTRY FOR THE PURPOSES OF THIS PART OF THIS ACT

Amendment made: No. 76, in page 9, line 42 after 'constable', insert 'in uniform'.— [Mr. Arthur Davidson.]

Miss Richardson: I beg to move Amendment No. 77, in page 9, line 43, after "search", insert "for that person".
This is an attempt to clarify the clause and to make it as exact as possible. The clause states that
a constable may enter (if need be, by force) and search any premises".
What I am trying to avoid is the possibility, however remote, that a constable might go into premises and, on the pretext that he is searching for a certain person, take the opportunity to search further than his duty would allow. I seek to insert the words "for that person" to make the intention behind the clause crystal clear.

Mr. Corbett: On a point of order, Mr. Deputy Speaker. Is it in order to proceed with our business when the Opposition Benches are empty?

Mr. Deputy Speaker: It would be in order to proceed with only the mover of the amendment present.

Mr. Arthur Davidson: As my hon. Friend the Member for Barking (Miss Richardson) rightly says, Clause 11 empowers a police constable to enter premises to effect an arrest under Clauses 6, 7, 8 and 10. As she knows, the Criminal Law Revision Committee proposed that there should be an express provision empowering a constable to enter premises to make an arrest in respect of an arrest-able offence as defined by that Committee. The Committee recommended the adoption of a distinction between felonies and misdemeanours. That provision is now in Section 2(6) of the Criminal Law Act 1967, and Clause 11 follows that closely.
Given the particular circumstances of the offence in this part of the Bill, it is inevitable that a constable will usually, if not invariably, need to enter premises to effect and arrest because of the very nature of the type of offence with which

we are dealing. It is essential that there should be an unequivocal and adequate power to enter premises to deal with public order offences.
I now come to Amendment No. 77. It would be highly undesirable to limit the scope of the power of search in the way that my hon. Friend intends. It would be absurd if a police officer who had entered premises and arrested the offender could not go on to search for a weapon which was temporarily concealed but still in the offender's possession. I hope that this clears up the points that my hon. Friend raised.

Mr. Mikardo: The Minister has taken only one of many contingencies that could arise under the clause. Let me give him a different scenario. Suppose that the officer suspects that the man he wants to arrest is in a house. He goes into the premises, if need be by force. Nobody is disputing that he should have the right to do that. The officer looks all over the house and finds that the chap is not there. Under the terms of the clause, even when the officer has established that the chap for whom he is looking is not there he can search the house.
What happens then has nothing to do with whether the man whom the officer is trying to arrest is there. He can look in every cupboard, every safe, and every drawer, without any intention of effecting an arrest. He knows that he cannot effect an arrest because he has established that the man whom he is trying to arrest is not there. That is possible under the terms of the clause as it stands.
If what the Minister is seeking is the right of an officer to go in and make an arrest, no one is disputing that that right would be preserved precisely and totally in the terms of the amendment. My hon. Friend is resting on the argument used by the right hon. and learned Member for Wimbledon (Sir M. Havers) in another context a short while ago. He is resting on this bastard of a situation for the child who is 10 years old. It is not very good, is it?

Mr. Arthur Davidson: I assure my hon. Friend that, in the circumstances he outlines, if an officer acted in that way he would not be acting under the terms of the clause and he would be committing an offence. He could search only for the


purpose of arrest. That is clearly set out. I understand my hon. Friend's query and I can assure him that his fear is groundless.

Amendment negatived.

Clause 12

SUPPLEMENTARY PROVISIONS

Amendments made: No. 79, in page 10, line 1, after 'Act', insert:

'(a)'.

No. 80, in page 10, line 5, at end insert 'and

(b) "access" means, in relation to any premises, any part of any site or building within which those premises are situated which constitutes an ordinary means of access to those premises (whether or not that is its sole or primary use).'.

No. 81, in page 10, leave out line 6 and insert:
'(1A) References in this section to a building shall apply also to any structure other than a movable one, and to any movable structure, vehicle or vessel designed or adapted for use for residential purposes; and for the purposes of subsection (1) above—'.

No. 83, in page 11, line 5, leave out subsection (8).—[Mr. Arthur Davidson.]

Clause 15

OFFENCES WHICH ARE TO BECOME TRIABLE ONLY SUMMARILY

The Under-Secretary of State for the Home Department (Dr. Shirley Summerskill): I beg to move Amendment No. 84, in page 12, line 22, leave out
'(4) Subsection (1) above is'
and insert:
(3A) The following offences under the Night Poaching Act 1828 shall be triable only summarily (instead of only on indictment), namely—

(a) offences under section 2 of that Act (assaults by persons committing offences under the Act);
(b) offences under section 9 of that Act (entering land, with others, armed and for the purpose of taking or destroying game or rabbits).
(4) Subsections (1) and (3A) above are'.

Mr. Deputy Speaker: With this it may be convenient to discuss Government Amendments Nos. 86, 101, 106, 109, 110, 129, 132, 133, 153, 165, 166, 179 and 191.

Dr. Summerskill: This group of 14 amendments makes certain changes in the mode of trial of offences under the Night Poaching Act 1828 and the Truck Act 1831. At the same time they seek to update and rationalise the penalties for the offences.
The first change is made in consequence of the new mode of trial procedures in Part III of the Bill. Section 1 of the Night Poaching Act creates a conditionally indictable offence—namely, an offence that is basically triable in a magistrates' court. If, however, it is committed by a person who has been convicted on two previous occasions, the offence is treated as a misdemeanour and is accordingly triable only on indictment, thereby inevitably disclosing to the jury that the offender has previous convictions. For this reason it would be anomalous to allow this procedure to survive in its present form. We have concluded that the right course is to make the offence triable only in the magistrates' court irrespective of the number at previous convictions.
We have also taken the opportunity to make the penalties more consistent with the new scale proposed in the Bill and with the existing day poaching penalties. Therefore, in place of the complex series of existing penalties, which involve not only fines and imprisonment but some outmoded provisions relating to the finding of sureties, we propose a maximum penalty of a £200 fine without the availability of imprisonment.
The only other conditionally indictable offence that we have discovered is contained in Section 9 of the Truck Act 1831 and consists of entering into illegal contracts or making illegal payments. The offence is at present triable summarily on the first two occasions, the maximum fines being respectively£10 and£20, but on the third occasion the offence is triable only on indictment, with a maximum penalty of a£100 fine. Paragraph 2 of the amendment to Schedule 1 makes the offence triable only in a magistrates' court, and the existing penalties are replaced by a maximum fine of£200.
The need to amend the offences under Section 1 of the Night Poaching Act focused attention on other offences under the Act—namely under Sections 2 and 9. Both these offences are at present triable


only on indictment and 14 years' imprisonment respectively. These are undoubtedly heavy penalties by present-day standards. Perhaps this is best explained by recalling that the Act was passed by the unreformed Parliament in 1828, when poaching was considered to be a particularly serious offence.
6.45 a.m.
Consideration of these penalties gives rise to the question of whether proceedings on indictment should be available for these offences at all. We concluded that the right step was to transfer these offences to the purely summary category with reduced maximum penalties of up to six months' imprisonment or a fine not exceeding£500, or both. Poaching offences and the game laws as a whole are outmoded and call for fundamental revision. There are a great many anomalies. The amendments to the 1828 Act are, we believe, the minimum necessary within the Bill.

Sir M. Havers: Faced with a battery of Home Office Ministers, I hope that I shall not be guilty of sex discrimination when extending my congratulations to the Under-Secretary on the clear way in which she introduced the amendments and described their effects. However, I think that it is a little ungentlemanly on the part of the hon. Lady's colleagues to make her come here at all today. We have been here all the time and she has had to be brought here. I congratulate her and welcome the amendments.

Amendment agreed to.

HIGHWAYS ACT 1959 (c. 25)


Offences under section 119(3) (failure to make good the surface of a public path after ploughing).
Section 119(4)(b).
£50
£200'.

Mr. John: First, I think that I should indicate to the right hon and learned Member for Wimbledon (Sir M. Havers) that his Amendment No. 137 is accepted. That fulfils an undertaking I gave in Committee.
These amendment; are concerned with penalty clauses. The only ones to which I need refer are Amendments No. 88 and 143. They give effect to an undertaking that I gave about the Medicines Act 1968 and the Poisons Act 1972. I think that the

Clause 30

PENALTIES (AND MODE OF TRIAL) FOR OFFENCES MADE TRIABLE ONLY SUM MARILY

Amendment made: No. 86, in page 22, line 28, at end insert:
'(2A) A person who (by virtue of section 15 above) is summarily convicted of an offence under section 2 (assaults by persons committing offences under the Act) or section 9 (entering land, with others, armed and for the purpose of taking or destroying game or rabbits) of the Night Poaching Act 1828 shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding£500, or to both (instead of to a maximum penalty on conviction on indictment of seven years imprisonment or a fine or both for an offence under the said section 2, or of fourteen years imprisonment or a fine or both for an offence under the said section 9).—[Mr. John.]

Clause 31

INCREASE OF FINES FOR CERTAIN SUMMARY OFFENCES

Mr. John: I beg to move Amendment No. 88, in page 24, line 40, at end insert:
'(9A) In section 67(6) of the Medicines Act 1968, for "£400" (which gives the maximum fine on summary conviction which can be imposed by regulations under section 66 for contravention of the regulations) there shall be substituted "£1,000".'.

Mr. Deputy Speaker: With this we may take Government Amendments Nos. 89, 102, 103, 112, 123, 136, 138, 139, 141, 142, 143, 151, 152 and 172.
We may also take Amendment No. 137. in Schedule 6, page 64, line 5, column 4, leave out '£50' and insert '£200', and
Amendment No. 140, in page 68, line 3 [Schedule 6], at end insert:
proposed penalties are more appropriate now.

Amendment agreed to.

Clause 32

OTHER PROVISIONS AS TO MAXIMUM FINES

Amendment made: No. 89, in page 25, line 21, at end insert:
'(3) In paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972, for the words


£5 a day" (which give the maximum daily fine with which an offence created under the powers conferred by section 2(2) of that Act can under those powers be made punishable on summary conviction) there shall be substituted the words "£100 a day".'.—[Mr. John.]

Clause 37

SUPERVISION ORDERS

Mr. John: I beg to move Amendment No. 91, in page 29, line 1, leave out
'paragraph (a) or (b) or paragraphs (a) and (b)'
and insert
'all or any one or more of paragraphs (a) to (c)'.

Mr. Deputy Speaker: With this we may also take Government Amendment No. 92.

Mr. John: This amendment allows us to attach a school attendance order to the supervision order that is imposed upon a juvenile. This is a helpful condition. It is one of a number of measures designed to make supervision orders more effective and to get away from the kind of custodial talk that we had quoted to us on various occasions from different quarters.

Amendment agreed to.

Amendment made: No. 92, in page 29, line 11, at end insert—
'(c) if he is of compulsory school age, to comply, for as long as he is of that age and the order remains in force, with such arrangements for his education as may from time to time be made by his parent, being arrangements for the time being approved by the local education authority.
Expressions used in paragraph (c) of this subsection and in the Education Act 1944 have the same meaning there as in that Act.'.—[Mr. John.]

Clause 39

SERVICE OF SUMMONSES AND CITATION THROUGHOUT UNITED KINGDOM

Mr. John: I beg to move Amendment No. 93, in page 30, line 40, leave out from 'purpose' to end of line 43 and insert
'the persons authorised to effect such citation shall include, in England and Wales and Northern Ireland constables and prison officers serving in those parts of the United Kingdom.'

Mr. Deputy Speaker: With this we are also taking Government Amendments Nos. 120, 121, 131, 145, 147 and 148.

Amendment agreed to.

Clause 49

BOMB HOAXES

Sir M. Havers: I beg to move Amendment No. 94, in page 36, line 3, at end insert:
'(4) A person who maliciously threatens otherwise than by letter or writing to kill or murder any person is guilty of an offence'.
This amendment concerns threats to which judges, counsel, jurors, police officers and others concerned in some way or other with the enforcement of the law —for example, in IRA cases—have been subject over the telephone.
I raised this matter in Committee when the new bomb-hoax was brought in. I do not want to go into the details; it is too late to do that. This is a serious matter which causes grave anxiety not only to the person threatened but to his wife and family. If it is a hoax it causes a great waste of police time. If it is genuine it is even more serious.
I have sought to take out of the Offences Against the Person Act 1861 the words which used to apply to the sending of a letter threatening to kill. It now appears with a sentence of five years in the bomb-hoax clause, unlike the 10 years' sentence for the letter offence. This is so obviously sensible that I hope that the Minister will accept it.

Mr. John: It is anomalous that, whereas written threats to murder are offences under the 1861 Act, for obvious reasons the antiquity of that Act prevents telephone calls threatening the same thing from being offences. I am therefore prepared to accept the amendment, subject to two caveats. The first is that we should be able to consider the drafting before the Bill returns to the House of Lords. The second is that the amendment should not prejudice the general codification of the law in this field currently being undertaken by the Law Revision Committee.

Amendment agreed to.

Clause 57

POWER TO ALTER SUMS SPECIFIED IN CERTAIN PROVISIONS

Amendments made: No. 95, in page 42, line 29, after 'sum', insert 'or sums'.

No. 96, in page 42, line 30, leave out 'was' and insert 'were'.

No. 97, in page 42, line 32, after 'sum', insert 'or sums'.

No. 98, in page 42, line 33, leave out 'as appears' and insert 'or sums as appear'.

No. 99, in page 42, line 39, at end insert:
(d) the Table in paragraph 1 of Schedule 3 to the Magistrate;' Courts Act 1952 (maximum periods of imprisonment in default of payment of fines etc.)'.—[Mr. John.]

Sir M. Havers: I. beg to move Amendment No. 100, in page 43, line 25, leave out
'subject to annulment in pursuance of a resolution of either'
and insert
'and approved by a resolution of each'.
The amendment arises from a point I raised in Committee when we were expressing concern about the powers granted to the Secretary of State to index-link fines. The provision is only for the adoption of the negative resolution procedure. The Secretary of State will have a very great power affecting anybody who might be involved in offences on which such fines are levied. It seemed to us that since the provision was so important it should be approved by the affirmative resolution procedure so that the House could be sure of a debate on the subject.

Mr. Graham Page: The Minister would be surprised if I did not rise to make the speech on this subject that I have made for the last 20 years. The Secretary of State is given the power to alter a statute, and that alone justifies our request for the affirmative resolution procedure.
The provision could alter greatly the administration of the courts by switching charges from one court to another. The volume of work of the courts could be substantially changed. There is always the difficulty of finding time for a Prayer unless an hon. Member goes through the usual channels. In the past it was always possible to get time for a Prayer, but times have changed.
It will not inconvenience the Government to agree to the affirmative resolution procedure. It simply ensures that they will find time for a debate on the Floor

of the House or in one of the many Committees upstairs.

Mr. Arthur Davidson: I would have been surprised if the right hon. Member for Crosby (Mr. Page) had not supported the amendment of the right hon. and learned Member for Wimbledon (Sir M. Havers). I have heard him speak in a similar vein on many occasions. On one memorable occasion, I think that I accepted his suggestion. Unhappily, I cannot do so this time.
The circumstances in which the Secretary of State would use these powers would be very limited, and I am satisfied, after looking at this carefully, that the negative procedure is adequate in all the circumstances. It has the great benefit of being simple. The occasions on which the Secretary of State would raise the limits as he is empowered to do would occur only if he were satisfied that inflation had so eroded them as to make it necessary. Those occasions would be extremely rare.
I have to tell the right hon. and learned Member for Wimbledon that in any event his amendment is defective. I hate to say that, because I have great respect for his legal expertise.
For those reasons, reluctantly I am unable to accept the amendment.

Amendment negatived.

Clause 58

PROVISIONS APPLYING TO SCOTLAND

Amendments made: No. 101, in page 43, leave out line 39 and insert—
'section 15(2), (3) and (3A); section 30(2A);'.

No. 102, in page 43, line 39, at end insert 'section 31(9A);'.

No. 103, in page 43, line 39, at end insert—
'section 32(3);'.

No. 104, in page 43, line 40, at end insert—
'sections 38 to 40 and Schedule 7;

No. 105, in page 43, line 41, leave out section 48 'and insert' sections 48 to 50'.

No. 106, in page 44, line 2, at end insert—
'Night Poaching Act 1828,'.

No. 107, in page 44, line 6, at end insert—
'Adoption Act 1958,'

No. 108, in page 44, line 15, at end insert—
'section 179 of the Road Traffic Act 1972,'.

No. 109, in page 44, line 18, at end insert—
'Night Poaching Act 1928, Truck Act 1831,'.

No. 110, in page 44, line 22, at end insert—
'Truck Amendment Act 1887,'.

No. 111, in page 44, line 24, at beginning insert section 283 of the'

No. 112, in page 44, line 27, at end insert—
'Penalties for Drunkenes Act 1962.'.

No. 113, in page 44, line 27, at end insert—
'Criminal Justice (Scotland) Act 1963'.

No. 114, in page 44, line 30, leave out 'and 92(8)' and insert 92(8) and 106(2)(f) '.

No. 115, in page 44, line 30 after second 'and', insert

'in relation to enactments mentioned therein which extend to Scotland, Part I of '.

No. 116, in page 44, line 33, at end insert—
'section 59(5)(e) of and paragraph 48(a) of Schedule 8 to the Courts Act 1971,'.

No. 117, in page 44, line 35, at end insert—
'section 58(a) of the Powers of Criminal Courts Act 1973,'.

No. 118, in page 44, line 37, at end insert—
'Criminal Procedure (Scotland) Act 1975,'.

No. 119, in page 44, line 38, at end insert—
'Schedule (Maters ancillary to section 46A) paragraph 3(3)'.— [Mr. John.]

Clause 60

CITATION, ETC.

Amendments made: No. 120, in page 45, line 23, leave out
'Part III of this Act so far as it relates'

and insert
'The provisions of sections 14 to 32 and 47 above, so far as they relate'.

No. 121, in page 45, line 25, leave out 'the said Part III' and insert 'those provisions'.

No. 122, in page 46, line 15, leave out paragraph (b) and insert—
'(b) the following provisions extend to Northern Ireland, namely—

sections 38 to 40.
section 44,
section 50,
section 52(4) to (6),
subsections (1), 3() and (6) to (10) of this section,
Schedule 7,
in Schedule 13, paragraph 4;'.

No. 123, in page 46, line 36, at end insert—
'(e) section 32(3) extends to all places (except Scotland) to which section 2 of the European Communities Act 1972 extends (as well as, by virtue of paragraph (a) above, to Scotland), and the provisions of section 28(6) and (7), in their operation in relation to the provision that may be made under section 2(2) of the said Act of 1972, extend to all such places (except Scotland);'. — [Mr. John.]

New Schedule

MATTERS ANCILLARY TO SECTION 46A

Probation orders

1. Where a court makes an order under section 46A(1) with respect to a sentence of imprisonment, it shall not make a probation order in the offender's case in respect of another offence of which he is convicted by or before that court, or for which he is dealt with by that court.

Courts competent to restore sentence held in
suspense

2.—(1) In relation to a sentence of imprisonment part of which is held in suspense, the courts competent under section 46A(3) are—

(a)the Crown Court; and
(b)where the sentence was passed by a magistrates' court, any magistrates' court before which the offenders appears or is brought

(2) Where an offender is convicted by a magistrates' court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the whole period of a sentence passed by the Crown Court with an order under 46A(1) —

(a)it may, if it thinks fit, commit him in custody or on bail to the Crown Court; and
(b)if it does not, it shall give written notice of the conviction to the appropriate officer of that court.

(3) For the purposes of this and the next following paragraph, a sentence of imprisonment passed on an offender with an order under 46A(1) shall be treated as having been passed (with such an order) by the court which originally sentenced him.

Recall of offender on re-conviction

3.—(1) If it appears to the Crown Court, where that court has jurisdiction in accordance with sub-paragraph (2) below, or to a justice of the peace having jurisdiction in accordance with that subsection, that an offender has been convicted in Great Britain of an offence punishable with imprisonment committed during the whole period of a sentence passed with an order under section 46A(1) of this Act, and that he has not been dealt with in respect of the part of the sentence held in suspense, that court or justice may, subject to the following provisions of this paragraph, issue a summons requiring the offender to appear at the place and time specified therein, or a warrant for his arrest.

(2) Jurisdiction for the purposes of subparagraph (1) above may be exercised—

(a) if the sentence was passed by the Crown Court, by that court;
(b) if it was passed by a magistrates' court, by a justice acting for the area for which that court acted.

(3) Where an offender is convicted by a court in Scotland of an offence punishable with imprisonment and the court is informed that the offence was committed during the whole period of a sentence passed in England or Wales with an order under section 46A(1), the court shall give written notice of the conviction to the appropriate officer of the court by which the original sentence was passed.

(4) Unless he is acting in consequence of a notice under sub-paragraph (3) above, a justice of the peace shall not issue a summons under this paragraph except on information and shall not issue a warrant under this paragraph except on information in writing and on oath.

(5) A summons or warrant issued under this paragraph shall direct the offender to appear or to be brought before the court by which the original sentence of imprisonment was passed.

Miscellaneous (procedural)

4. Where the offender is before the Crown Court with a view to the exercise by that court of its powers under section 46A(3), any question whether and, if so, when he has been convicted of an offence shall be determined by the court and not by the verdict of a jury.

5. Where the offender has been before a court with a view to its exercising those powers, the appropriate officer shall—

(a) if the court decided not to exercise the powers, record that fact; and
(b) whether or not it exercised them, notify the appropriate officer of the court which passed the original sentence as to the manner in which the offender was dealt with.

6. For the purposes of any enactment conferring rights of appeal in criminal cases, the restoration by a court under section 46A(3) of a part of a sentence held in suspense shall be treated as a sentence passed on the offender by that court for the original offence that is to say the offence for which the original sentence was passed with an order under section 46A(1).

Miscellaneous (consequential)

7. Where a sentence of imprisonment is passed with an order under 46A(1), it is still to be regarded for all purposes as a sentence of imprisonment for the term stated by the court, notwithstanding that part of it is held in suspense by virtue of the order; and, for the avoidance of doubt, a sentence of which part is held in suspense by virtue of such an order is not to be regarded as falling within the expression "suspended sentence" for the purposes of any legislation, instrument or document.

8. Where an offender is sentenced to imprisonment with an order under section 46A and, having served part of the sentence in prison, is discharged under section 25(1) of the Prison Act 1952 (remission for industry and good conduct), the remainder of the sentence being held in suspence, the sentence is not to be regarded as expiring under that section.

9. In section 21 of the Firearms Act 1968 (prohibition on possession of firearms by persons previously convicted of crime), after subsection (2) there shall be inserted—
2(A) For the purposes of subsection (2) above, 'the date of his release', in the case of a person sentenced to imprisonment with an order under section 46A(1) of the Criminal Law Act 1977, is the date on which he completes service of so much of the sentence as was by that order required to be served in prison.".

10. In section 67 of the Criminal Justice Act 1967 (computation of sentence where offender has been previously in custody), in subsection (1), after "rose, but "there shall be inserted "(a)". and at the end of that subsection there shall be inserted—
(b) in the case of a person sentenced to imprisonment with an order under section 46A of the Criminal Law Act 1977, this subsection operates to reduce the part of the sentence ordered to be served in prison, but not any part held in suspense and restored under subsection (3) of that section".

11. In section 1 of the Rehabilitation of Offenders Act 1974 (general principle as to rehabilitation when conviction is spent), after subsection (2) there shall be inserted—
(2A) Where in respect of a conviction a person has been sentenced to imprisonment with an order under section 46A(1) of the Criminal Law Act 1977, he is to be treated for the purposes of subsection (2) above as having served the sentence as soon as he completes service of so much of the sentence as was by that order required to be served in prison."—[Mr. Merlyn Rees.]

Brought up, read the First and Second time, and added to the Bill.


Schedule 1


OFFENCES MADE TRIABLE ONLY SUMMARILY, AND RELATED AMENDMENTS


Amendments made: No. 129, in page 47, line 5, at end insert—


`Night Poaching Act 1828,


1. Offences under Section 1. section 1 (taking or destroying game or rabbits by night or entering land for that purpose).
For the words from "such offender" onwards substitute "he shall be liable on summary conviction to a fine not exceeding£200".
(a)for a first offence, on summary conviction, 3 months or£100 and, in default of finding sureties of£10, a further 6 months;
(b)for a second offence, on summary conviction, 6 months or£100 and, in default of finding sureties of£20, a further 12 months;
(c)for a third offence, on conviction on indictment, 2 years or a fine or both.
£200.


Truck Act 1831,


2. Offences under Section 9. Section 9(entering into illegal contracts or making illegal payments).
For the words from "for the first" onwards substitute "be liable on summary conviction to a fine not exceeding£200.".
(a) for a first offence,£10;
(b) for a second offence,£20;
(c) for a third offence,£100.
£200.'.

No. 131, in page 52, line 15, column 5, leave out paragraph (b) and insert—
'(b) where in any other case it is shown that the offender was in charge of a motor vehicle on a road or other public place, 3 months or£500, or both.'.—[Mr. John.]

Schedule 2

OFFENCES TRIABLE EITHER WAY INSTEAD OF ONLY ON INDICTMENT

Amendment made: No. 132, in page in page 53, leave out lines 6 and 7.—[Mr. John.]


LICENSING ACT 1872 (c. 94)


Offences under the first paragraph of section 12 (being found drunk in a highway or other public place)
Section 12 (as amended by section 1 of the penalties for Drunkenness Act 1962).
£5.
£25.


 MERCHANT SHIPPING ACT 1894 (C. 60)


Offences under the following provisions—
Section 287 (as amended by
£5.
£25.


section 287(1)(a) (attempting to board a steamer while drunk or disorderly);
section 1 of the Penalties for Drunkenness Act 1962).




section 287(1)(b) (refusing to leave a steamer while drunk or disorderly).





LICENSING ACT 1902 (C. 28)


Offences under section 2(1) (being drunk in a highway or other public place while in charge of a child).
section 2(1) (as amended by section 1 of the Penalties for Drunkenness Act 1962).—[Mr.John.]
£10
£50.'.

No. 137, in page 64, line 5, column 4, leave out '£50' and insert '£200'.—[Sir M. Havers.]

No. 138, in page 64, line 18, at end insert—


'Any offence consisting in a contravention of section 67 of Schedule 3 (interference with valve or apparatus).
Section 67 of Schedule 3.
£5
£200.'.

Schedule 3

OFFENCES TRIABLE EITHER WAY BY VIRTUE OF SECTION 16(1) OR (2)

Amendment made: No. 133, in page 55, leave out lines 11 and 12.—[Mr. John.]

Schedule 6

INCREASE OF FINES FOR CERTAIN SUMMARY OFFENCES

7.0 a.m.

Amendments made: No.136, in page 62, line 16, at end insert—

No. 139, in page 64, line 24, at end insert—


Any offence consistir.g in a contravention of section 33 of Schedule 4 (causing the supply of water to be interfered with).
Section 33 of Schedule 4.
£5.
£200.'


—[Mr. John.]


No. 140, in page 68, line 3, at end insert—


'Highways Act 1959 Section 119(4)(b) (c.25) offences under section 119(3) (failure to make good the surface of a public path after ploughing).—[Mr. Edward Lyons.]

£50
£200'.


No. 141, in page 69, line 11, at end insert—


Offences under section 174(2) (refusal of person who is drunk etc. to leave licensed premises on request).
Section 174(2).
£5.
£25.'.


No. 142, in page 71, line 16, at end insert—


'LATE NIGHT REFRESHMENT HOUSES ACT 1969 (c. 53)


Offences under section 9(4) (refusal of person who is drunk, etc. to leave licensed late night refreshment house on request).
Section 11(3).
£5.
£25.'.


No. 143, in page 71, line 32, at end insert—


POISONS ACT 1972 (c. 66)


Any offence under section 8(1) (contravention of provisions of sections 1 to 7, other than section 6(4), or of the Poisons Rules).
Section 8(1).
£50.
£500.


Offences under section 6(4) (using title etc. falsely to suggest entitlement to sell poison).
Section 6(4).
£20.
£50.


Offences under section 9(8) (obstructing an inspector etc.).
Section 9(8).
£5.
£50.'.


—[Mr. John.

Schedule 7

TRANSFER OF FINE ORDERS

Amendment made: No. 144, in page 76, line 4, leave out from 1975 'to end of line 5.— [Mr. John.]

Schedule 8

TRANSFER OF REMAND HEARINGS

Amendment made: No. 145, in page 78, line 18, leave out paragraph 2 and insert—
'2. Where an order under section 41(1) above is made in the course of proceedings which, for the purposes of section 3 of the Criminal Justice Act 1967 (reporting restrictions and their removal), are committal proceedings, proceedings relating to the accused before the alternative court are also committal proceedings for those purposes.'—[Mr. John.]

Schedule 9

NEW SECTION TO TIE SUBSTITUTED FOR S.20 OF CORONERS (AMENDMENT) ACT 1926

Amendment made: No. 146, in page 80, line 5. leave out from 'proceedings' to end of line 12 and insert—

'(b) the coroner shall, after the termination of the inquest, furnish the registrar of deaths with a certificate under his hand stating the result of the relevant criminal proceedings; and
(c) the provisions of paragraph (3) of section 18 of the Coroners Act 1887 and section 23(1) of the Births and Deaths Registration Act 1953 (duty of coroner to send registrar certificate containing information as to death and finding of inquest) shall not apply in relation to that inquest.'. —[Mr. John.]

Schedule 10

AMENDMENTS OF CRIMINAL PROCEDURE (SCOTLAND) ACT 1975

Amendments made: No. 147, in page 83, line 24, leave out 'other than by a local authority'.

No. 148, in page 83, line 26, after 'Act', insert 'other than by a local authority'.

No. 149, in page 85, line 49, at end insert:
'7A. In section 397(1) for the words "or under section 72A of the Magistrates' Courts Act 1952" there shall be substituted the words", under section 72A of the Magistrates' Courts Act 1952 or under section 104A of the Magistrates' Courts Act (Northern Ireland) 1964".'.

No. 150, in page 87, line 18, leave out from under' to the end of line 32.

No. 151, in page 88, line 13, at end insert:

Licensing Act 1872

Licensing Act 1902'.

No. 152, in page 88, line 31, at end insert:

'Late Night Refreshment Houses A 1969'. —[Mr. John.

Schedule 11

MINOR AND CONSEQUENTIAL AMENDMENTS

Amendments made: No. 153, in page 88, line 34, at end insert:

'NIGHT POACHING ACT 1828 (c. 69)

1. In section 2 (assaults by persons committing offences under the Act), for the words from "whether et be" onwards substitute "be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding£500, or to both".

2. In section 9 (entering land, with others, armed and for the purpose of taking or destroying game or rabbits), for the words from "at the discretion of the court" onwards substitute "on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding£500, or to both.".'.

No. 154, in page 89, line 40, at end insert:

'REPRESENTATION OF THE PEOPLE ACT 1949 (c. 68)

In section 149(9) (procedure where person prosecuted before an election court subsequently attends or is brought before a magistrates' court) —

(a) in paragraph (b), for "hear" substitute "try"; and
(b) after that paragraph add "and sections 19 to 26 of the Criminal Law Act 1977 shall (in either case) not apply.".'.

No. 155, in page 91, line 44, at end insert:

'BIRTHS AND DEATHS REGISTRATION ACT 1953 (c. 20)

In section 29(4) (correction of error in register resulting from error in information given by a coroner's certificate), for the words preceding "the coroner, if satisfied", substitute—
(4) Where—

(a) an error of fact or substance (other than an error relating to the cause of death) occurs in the information given by a coroner's certificate concerning a dead body upon which or a death touching which he has held an inquest; or
(b) such an error relating to the cause of death occurs in the information given by a coroner's certificate issued under section 20(4) of the Coroners (Amendment)

Act 1926 in the case of an inquest which was adjourned in compliance with section 20(1) of that Act (adjournment in cases of murder etc, or at request of D.P.P.) but was subsequently resumed,".'.

No. 156, in page 92, line 14, at end insert—

'ADOPTION ACT 1958 (7 & 8 Eliz.2.c.5)

In section 50 (prohibition of certain payments), after subsection (3) insert:—
(3A) This section does not apply to

(a) any payment made by an adoption agency to a person who has applied or proposes to apply to a court for an adoption order or an order under section 53 of this Act (provisional adoption orders), being a payment of or towards any legal or medical expenses incurred or to be incurred by that person in connection with the application; or
(b) any payment made by an adoption agency to another adoption agency in consideration of the placing of a child in the actual custody of any person with a view to the child's adoption; or
(c) any payment made by an adoption agency to a voluntary organisation for the time being approved for the purposes of this paragraph by the Secretary of State as a fee for the services of that organisation in putting that adoption agency into contact with another adoption agency with a view to the making of arrangements between the adoption agencies for the adoption of a child,
and never has applied to payments of the kinds mentioned in paragraphs (a) and (b) of this subsection.

In paragraph (c) of this subsection 'voluntary organisation' means a body, other than a public or local authority, the activities of which are not carried on for profit." '.

No. 157, in page 94, line 10, at end insert—
'2. In section 169 (serving or delivering intoxicating liquor to or for consumption by persons under 18)—

(a) in subsection (1) (which prohibits, in licensed premises, the licence holder or his servant from knowingly selling intoxicating liquor to a person under 18 or allowing such a person to consume it in a bar, and the licence holder from knowingly allowing any person to sell it to a person under 18), for "subsection (4)" substitute "subsections (4) and (10)"; and
(b) after subsection (9) add—
"(10) Where, as regards any licensed premises, the holder of the licence is charged with an offence under subsection (1) of this section in a case in which it is proved or admitted that he did not personally have the knowledge required for the commission of the offence charged, he shall not be convicted of the offence on the basis of another's knowledge if he proves that he exercised all due diligence to avoid the commission of an offence under that subsection."'.

No. 158, in page 95, line 47, at end insert:
'3. In section 23(2) (requirements as to bringing before a justice of the peace or court a person arrested after admission to bail), after paragraph (b) insert—
In reckoning for the purposes of this subsection any period of twenty-four hours, no account shall be taken of Christmas Day, Good Friday or any Sunday."'.

No. 159, in page 96, line 19, at end insert:
'4. In section 44(5) (restrictions on magistrates' court's power to issue a warrant of commitment for a default in paying a sum adjudged to be paid by a conviction), for paragraph (b) substitite—
(b) the court—

(i) is satisfied that the default is due to the offender's wilful refusal or culpable neglect; and
(ii) has considered or tried all other methods of enforcing payment of the sum and it appears t a the court that they are inappropriate or unsuccessful.".'.

No. 160, in page 100, line 36, at end insert:

ROAD TRAFFIC ACT 1972 (c.20)

1. In section 179 (restrictions on prosecutions for certain offences), in subsection (1) (offences to which section applies), after paragraph (a) insert—
(aa) any offence under subsection (4) of section 13 of the Road Traffic Regulation Act 1967 (traffic regulation on special roads) consisting of failure to observe a speed limit imposed by regulations under that section; and".

2. In Part I of Schedule 4 (prosecution and punishment of offences), in column 7 (additional provisions) —
(a) in the entry relating to section 3. for "4" substitute "3A, 4, 5";
(b) in the entry relating to section 18, after "paragraphs" insert "3A)".

3.—(1) Part IV of Schedule 4 (supplementary provisions as to prosecution, trial and punishment of offences) shall be amended as follows.

(2) After paragraph 3 insert the following paragraph—
3A.—(l) Where on a person's trial on indictment in England or Wales for an offence under section 1, 2, or 17 the jury find him not guilty of the offence specifically charged in the indictment, they may (without prejudice to section 6(3) of the Criminal Law Act 1967) find him guilty—

(a) if the offence so charged is an offence under section 1 or 2, of an offence under section 3; or
(b) if the offence so charged is an offence under section 17, of an offence under section 18.

(2) The Crown Court shall have the like powers and duties in the case of a person

who is by virtue of this paragraph convicted before it of an offence under section 3 or 18 as a magistrates' court would have had on convicting him of that offence.".

(3) In paragraph 5 (by virtue of which, on a prosecution on indictment for an offence to which section 179 does not apply. subsection (2) of that section does not prejudice any power of the jury to find him guilty of an offence under section 2)—

(a) after "apply", insert "or (if that section does not apply) as regards which the requirement of section 179(2) has been satisfied, or does not apply,";
(b) after "section 2", add "or 3".'.

No. 161, in page 100, line 41, at end insert—
1. In section 34(1) (power of constable to take drunken offender to a place approved by the Secretary of State as a medical treatment centre for alcoholics), omit 'medical'.".

No. 162, in page 105, line 16, at end insert—

ADOPTION ACT 1976 (c.36)

1. In section 28(8), for `subsection (6) 'substitute subsection 7.'

2. In section 57 (prohibition of certain payments), after subsection (3) insert:
'(3A) This section does not apply to

(a) any payment made by an adoption agency to a person who has applied or proposes to apply to a court for an adoption order or an order under section 55 (adoption of children abroad), being a payment of or towards any legal or medical expenses incurred or to be incurred by that person in connection with the application; or
(b) any payment made by an adoption agency to another adoption agency in consideration of the placing of a child in the actual custody of any person with a view to the child's adoption; or
(c) any payment made by an adoption agency to a voluntary organisation for the time being approved for the purposes of this paragraph by the Secretary of State as a fee for the services of that organisation in putting that adoption agency into contact with another adoption agency with a view to the making of arrangements between the adoption agencies for the adoption of a child.
In paragraph (c)"voluntary organisation" means a body, other than a public or local authority, the activities of which are not carried on for profit.'".

No. 163, in page 105, line 28, at end insert—
3. In section 7(4) (requirements as to bringing before a justice of the peace or court a person arrested after release on bail), after paragraph (b) insert—
'In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.'".

No. 164, in page 105, line 28, at end add—
3. — (1) Section 5 (supplementary provisions about bail) shall be amended as follows.

(2) After subsection (8) insert—
'(8A) An order under subsection (7) above shall, unless previously revoked, take effect at the end of twenty-one days beginning with the day on which it is made.
(8B) A court which has ordered the forfeiture of a security under subsection (7) above may, if satisfied on an application made by or on behalf of the person who gave it that he did after all have reasonable cause for his failure to surrender to custody, by order remit the forfeiture or declare that it extends to such amount less than the full value of the security as it thinks fit to order.
(8C) An application under subsection (8B) above may be made before or after the

' 9 Geo. 4 c. 69
Night Poaching Act 1828.
Sections 4 and 11.


1 &amp; 2 Will. 4 c. 37.
Truck Act 1931.
Section 10.'.


No. 166, in page 106, line 35, at end insert:


'50 &amp; 51 Viet. c. 46.
Truck Amendment Act 1887.
Section 13(1) and (3).'.

No. 167, in page 107, line 5, column 3, leave out paragraph 2(3)' and insert paragraphs 2(3) and 3(1)'.

No. 168, in page 107, line 16, column 3, at end insert Section 285(1).'.

No. 169, in page 107, line 20, column 3, at end insert Section 102(3).'.

No. 172, page 108, line 14, at end insert:


'10 &amp; 11 Eliz. 2. c. 52.
Penalties for Drunkenness Act 1962.
In section 1(2)(a) the words from "the first paragraph of section twelve" to "1894".




In section 1(2)(b) the words "section two of the Licensing Act 1902".'.


No. 173, page 108, line 14, at end insert:


1963 c. 39.
The Criminal Justice (Scotland) Act 1963.
Section 26.




In section 53(1), the entries relating to section 26 and Schedule 3.




In Schedule 3, Part II.'.


No. 174, page 108, line 23, at end insert:


1967 c. 1.
Land Commission Act 1967.
Section 82(5).'.

No. 175, in page 108, line 53, column 3, at end insert Section 91(5).'.

No. 176, page 108, line 54, column 3. at end insert 'Section 93.'.

No. 177, page 108, line 54, column 3, at end insert:

'In secton 106(2)(f), the words "the Summary Jurisdiction (Scotland) Act 1954,".'.

No. 178, in page 109, line 19, column 3, at end insert:

'In Schedule 6, paragraphs 14 to 16 and 2.'.

order for forfeiture has taken effect, but shall not be entertained unless the court is satisfied that the prosecution was given reasonable notice of the applicant's intention to make it.'

(3) After subsection (9) insert—
'(9A) Where an order is made under subsection (8B) above after the order for forfeiture of the security in question has taken effect, any money which would have fallen to be repaid or paid over to the person who gave the security if the order under subsection (8B) had been made before the order for forfeiture took effect shall be repaid or paid over to him.'.".-[Mr. John.]

Schedule 12

REPEALS

Amendments made: No. 165, in page 106, line 11, at end insert:

No. 170, in page 107, line 28, column 3. at end insert:
'In Schedule 3, paragraph 3.'.

No. 171, in page 107, line 53, column 3. at beginning insert:
'In the proviso to section 1(3), the words from "a cinematograph exhibition" to "in the course of".'.

No. 179, in page 109, line 20, column 3, leave out from 57(4),'to end of line 23 and insert:
'the definition of "indictable offence".'.-[Mr. John.]

Mr. Kilroy-Silk: I beg to move Amendment No. 180, in page 109, line 58, column 3, at end insert—
'In section 22, subsections (5) and (6).
In section 23, subsections (2) and (3).'
If we are lucky, we might get home for breakfast. Last year 5,042 boys and


girls between the ages of 14 and 16 were removed to Prison Department establishments in England and Wales. Many of them went not to remand centres but to local prisons.
On 31st March this year there were 19 boys between the ages of 14 and 16 in adult prisons, 10 aged 15 or 16 in Holloway, an adult prison, and 330 boys and 11 girls in adult remand centres. The surprising thing is that none of these schoolchildren was convicted or found guilty of offences. They were technically innocent.
Experience over the last few years has shown that 50 per cent. of those children will subsequently be found not guilty or will receive a non-custodial sentence. In practice, they serve their prison sentences before conviction. In the case of the girls, they were not segregated from adult prisoners. We have no legal power to send schoolchildren to prison once they have been convicted and yet, ironically and paradoxically, we have the power to send up to 5,000 schoolchildren a year to prison or adult remand centres.
That is a shocking indictment of our society and of successive Governments, because they have failed to provide adequate resources. The children are sent to prisons and remand centres on the remit of magistrates who issue removal certificates when there is insufficient secure accommodation in local authority establishments. That situation arises because local authorities, under successive Governments, have failed to provide the financial wherewithal.
Governments have also failed to experiment adequately with alternative means of dealing with the children within the community through fostering and a variety of other schemes which I shall not describe in detail because of the hour.
After repeated demands from myself and other hon. Members over several years for something to be done about this scandal, the Government have fulfilled commitments to end the remand of 14year-old girls, which ended in March this year, to provide more resources for secure units under the Children Act and to tighten up the criteria for the issue of unruly certificates. That tightening up will not come into effect until 1st August and. unfortunately, will tend to make the imprisonment of schoolchildren more respec—

table and even an acceptable part of our penal system.
In spite of all that, and in spite of all the sympathy shown on this issue by my right hon. Friend the Secretary of State and his predecessor, in this apparently enlightened, progressive and compassionate age schoolchildren still go to adult prisons and Prison Department establishments, and are doing so in increasing numbers. The figures for the first quarter of this year show an increase on the total figures for last year. The problem is alarming, and unless we do something positive, and quickly, we shall never have the incentive or motive to deal with it effectively.
The amendment would remove all the legal powers that enable the Government, local authorities and the courts to remand schoolchildren to prisons and Prison Department establishments. After a long period in which many organisations and individuals have been campaigning on the issue, in view of the relatively small impact that has been made upon the numbers held in prisons the only way to deal with the problem is to say "You will not in future have the power to remand schoolchildren to prisons."
We all agree that sending schoolchildren to prison is intolerable and wrong. We put our hands on our hearts and wish that we could do something else. None of us can justify it. Let us now put the matter to the test and say "If we do not have the legal power, we shall have to find alternative means of dealing with the problem", as I am sure we would. If we close one route, we shall find an alternative route to deal with the problem.
I suggest that my hon. Friend the Minister, who has been so magnanimous and helpful in meeting amendments from both sides of the House, makes one final gesture and keeps the ship afloat by accepting the amendment.

Mr. John: I do not know what gesture my hon. Friend expects me to make towards him.

Mr. Kilroy-Silk: Accepting the amendment.

Mr. John: It was an ambivalent expression.
I cannot accept the amendment, because it is not the right approach summarily to close off all the options without the necessary accommodation being


available. One can say "It will happen somehow", but it will not. We know that the accommodation cannot be made ready in the time before the Bill receives Royal Assent, even if we start now.
But my hon. Friend was right to say that constructive steps are being taken to deal with the matter. The order made by my right hon. Friend the Home Secretary on 7th March excluding the committal to prison of girls under the age of 15 is one such step. My right hon. Friend the Secretary of State for Social Services, who has responsibility for accommodation, is to discuss with local authority associations in the near future the next steps in phasing out this type of remand.
The order under Section 69, which comes into force on 1st August, makes it more certain that no young person will be remanded to prison unless it is absolutely necessary. So far from making it respectable, I believe that it would make

Division No. 194.]
AYES
[7.10 a.m.


Callaghan, Jim (Mlddleton &amp; P)
Maynard, Miss Joan
Ward, Michael


Corbett, Robin
Ovenden, John
Wise, Mrs Audrey


Davies, Bryan (Enfield N)
Parry, Robert



Evans, John (Newton)
Richardson, Miss Jo
TELLERS FOR THE AYES:


Flannery, Martin
Robinson, Geoffrey
Mr. Andrew F. Bennett and


Kerr, Russell
Skinner, Dennis
Mr. Ian Mikardo.


Kilroy-Silk, Robert






NOES


Anderson, Donald
Golding, John
Morris, Charles R. (Openshaw)


Archer, Rt Hon Peter
Goodhart, Philip
Noble, Mike


Armstrong, Ernest
Gould, Bryan
Page, Rt Hon R. Graham (Crosby)


Ashton, Joe
Graham, Ted
Palmer, Arthur


Bates, Alf
Grant, George (Morpeth)
Park, George


Bean, R. E.
Hardy, Peter
Rees, Rt Hon Merlyn (Leeds S)


Boothroyd, Miss Betty
Harrison, Rt Hon Walter
Ross, Rt Hon W. (Kilmarnock)


Brown, Hugh D. (Provan)
Havers, Rt Hon Sir Michael
Small, William


Cocks, Rt Hon Michael
Horam, John
Smith, John (N Lanarkshire)


Coleman, Donald
Howell, Rt Hon Denis (B'ham, Sm H)
Snape, Peter


Cook, Robin F. (Edln C)
Hunt, David (Wirral)
Stallard, A. W.


Cowans, Harry
Hunter, Adam
Stoddarl, David


Cox, Thomas (Tooting)
Irving, Rt Hon S. (Dartford)
Slott, Roger


Cunningham, G. (Islington S)
John, Brynmor
Srradling Thomas, J.


Daiyell, Tarn
Johnston, Russell (Inverness)
Summerskill, Hon Dr Shirley


Davidson, Arthur
Jones, Barry (East Flint)
Taylor, Mrs Ann (Bolton W)


Deakins, Eric
Khufman, Gerald
Tinn, James


Dean, Joseph (Leeds West)
Lamble, David
Wainwright, Edwin (Dearne V)


Dempsey, James
Lamond, James
Walker, Terry (Kingswood)


Dormand, J. D.
Le Marchant, Spencer
Watkinson, John


Douglas-Mann, Bruce
Lester, Jim (Beeston)
White, Frank R. (Bury)


Dunn, James A.
McCartney, Hugh
Whitlock, William


Dunnett, Jack
McElhone, Frank
Wilson, Alexander (Hamilton)


Dunwoody, Mrs Gwyneth
MacFarquhar, Roderick



Ellis, John (Brigg &amp; Scun)
McGuire, Michael (Ince)
TELLERS FOR THE NOES:


Ellis Tom (Wrexham)
Mallalieu, J. P. W.
Mr. James Hamilton and


Evans, loan (Aberdare)
Marks, Kenneth
Mr. Joseph Harper.


Fletcher, Ted (Darlington)
Marshall, Dr Edmund (Goole)



Freeson, Reginald
Mayhew, Patrick



George, Bruce
Mitchell, Austin Vernon (Grimsby)



Question accordingly negatived.

it rarer. The sum of£.3½million for secure accommodation, which we are providing under the Children Act 1975, is an earnest of our good intentions.

The Government have a great deal of sympathy, as expressed in the White Paper, with the point of view which has been put forward, but I ask my hon. Friend, in view of the fact that no accommodation can be provided in the time scale of which he has spoken, not to press his amendment.

Mr. Kilroy-Silk: We have just had the kind of remarks and comments that we have been hearing for the past five years and more. The fault is not that of my hon. Friend the Minister, but in view of the nature of his answer we shall have to press this to a Division.

Question put, That the amendment be made:—

The House divided: Ayes 15, Noes 83.

Amendments made: No. 181, in page 110, line 6, column 3, at beginning insert—
'In section 41(6)(a), the words from "and in" to "Scotland)" and the words "in each case".'.

No. 182, in page 110, line 12, column 3, at end insert—
'In section 59(5)(e), the words from "and" in the first place where it occurs to the end.'.

No. 183, in page 110, line 14, leave out and in paragraph 34 'and insert in paragraph 34(1)'.

No. 184, in page 110, line 15, column 3, at end add
'paragraph 34(3) and in paragraph 48(a) the words "14, 16, 21(c)

No. 190, in page 111, line 45, at end insert—


1975 c. 21.
The Criminal Procedure (Scotland) Act 1975.
Section 17




Section 325




In section 403(1), the words from "if" to "of payment of the fine"




In section 403(4) the words from "or that Table" to the end.




Section 403(5)




In section 463(1), in paragraph (a) the word "17", in paragraph (b) the words "325" and in paragraph (d) sub-paragraphs (i) and (iii)




In Schedule 9, paragraphs 15 and 35.'.—[Mr. Merlyn Rees.]

Schedule 13

TRANSITIONAL PROVISIONS

Amendments made: No. 191, in page 112, line 13, at end insert section 30(2A) above, in'.

No. 192, in page 112, line 26, at end insert—
'3A. Section (Alteration of maximum periods of imprisonment in default of payment of fines etc.), and any related repeal provided for in Schedule 12 to this Act, shall not apply to a term of imprisonment to be served by a defaulter which has been fixed or imposed before the commencement of that section.'.

No. 193, in page 112, line 28, after 29', insert
'or any provision mentioned in paragraph 3A above'.—[Mr. Merlyn Rees.]

7.20 a.m.

Mr. Merlyn Rees: I beg to move, That the Bill be now read the Third time.

No. 185, in page 110, line 38, column 3, at beginning insert—
'In section 34(1) the word "medical".'.

No. 186, in page 110, line 52, column 3, at end insert Section 33.'.

No. 187, in page 111, line 17, at end insert—
'In section 58(a), the word "33".'.

No. 188, in page 111, line 26. column 3, at end insert—
'In Schedule 5, paragraphs 6 and 8.'.

No. 189, in page 111, line 44, column 3, at end insert—
'In section 27(1) the words "to the Magistrates' Courts Act 1952 and". In Schedule I. paragraph 26.'.

On Second Reading I said that the Bill did not have a single theme. It now has more themes—64 clauses instead of 50; and we have made about 200 amendments, as well as a similar number in another place. I am glad to have my name on the Bill which puts the common law offence of conspiracy in England and Wales in statutory form and prescribes penalties to be related to the substantive offence at which the conspiracy was directed. The House has reason to be well satisfied with its work. We are indebted to the right hon. and learned Member for Wimbledon (Sir M. Havers) for his wise counsel and helpful spirit and to my right hon. and hon. Friends.

I express my personal appreciation of the work of the Minister of State, who has steered the Bill through Committee and borne the brunt of the Report stage. He represents Pontypridd, and the men born there are noted for their perspicacity and sagacity. Some of us have not had


his patience, and we are grateful for his piloting of the Bill.

7.22 a.m.

Sir M. Havers: I share the Home Secretary's commendation of the Minister of State. The Bill is much better. Many of the points I raised on Second Reading have been adopted, and I am grateful for the courtesy which the Government have always shown. On the first day of the Committee stage, when the ability of the Minister of State was already becoming apparent, I said:
I think it possible that, before IA e finish our deliberations next month, we shall confer upon the Minister the honorary title of Silk '—not, I hasten to say, hyphenated in any way." —[Official Report, Standing Committee E, 10th May 1977; col. 43.]
I hope that I may be allowed to present him with this token of that honorary title of "Silk".

Mr. Deputy Speaker: If Mr. Speaker had been here, he would have conferred
746-754
on the Minister the honorary Doctorate of Laws of the House of Commons.

7.24 a.m.

Mr. Mikardo: I am about to make the last of my series of one-sentence, one-minute speeches of the night. On Second Reading, my hon. Friends and I thought that this was a diabolically awful Bill and we voted against it. Since then some improvements have been made, and it is now no more than a devilishly awful one. We therefore do not propose to vote against the Third Reading.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.

ADJOURNMENT

Resolved, That this House do now adjourn.—[Mr. Frank R. White.]

Adjourned accordingly at twenty-five minutes past Seven o'clock a.m.